Citation Nr: A20000148 Decision Date: 01/07/20 Archive Date: 01/07/20 DOCKET NO. 190421-8112 DATE: January 7, 2020 ORDER The motion asserting clear and unmistakable error (CUE) in the July 2012 rating decision that assigned a non-compensable rating for service-connected degenerative arthritis of the cervical spine (cervical spine disability) is granted and a 10 percent disability rating is assigned effective October 1, 2011. The motion asserting CUE from the July 2012 rating decision that assigned a non-compensable rating for service-connected migraines is denied. The appeal of an effective date earlier than October 11, 2016, for a 10 percent rating disability for a cervical spine disability is dismissed as moot. REMANDED The claim for a compensable rating for migraines is remanded. FINDINGS OF FACT 1.The July 2012 rating decision inaccurately applied law and regulation that is undebatable error, and had the RO not committed this error, the outcome would have manifestly changed, thereby granting a 10 percent disability rating for the cervical spine disability, based on the record and law that existed at the time of the July 2012 rating decision. 2. The RO correctly applied law and regulation in the assignment of a non-compensable disability rating for migraine headaches in the July 2012 rating. 3. Given the Board’s finding of CUE in the July 2012 rating decision, which should have granted a 10 percent disability rating for the cervical spine disability, the appeal of an effective date, earlier than October 11, 2016, for a 10 percent rating disability for a cervical spine disability, is moot. CONCLUSIONS OF LAW 1. The criteria for reversing a prior, final July 2012 rating decision, on the basis of CUE, for a cervical spine disability, have been met. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2018). 2. The criteria for reversing a prior, final July 2012 rating decision, which granted a zero percent, non-compensable rating for migraines, on the basis of clear and unmistakable error, have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 3. The appeal of an effective date earlier than October 11, 2016, for the award of a 10 percent rating disability rating for a cervical spine disability, is moot. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1991 to September 2011. The rating decision on appeal was issued in March 2019. The Veteran selected the Higher-Level Review lane when he timely appealed these rating decisions in an April 2019 notice of disagreement (NOD) and requested “direct review” of the evidence considered by the Agency of Original Jurisdiction (AOJ). By selecting “direct review” of the evidence, the Board of Veterans’ Appeal (Board) must base its decision on the evidence that was before the AOJ at the time of the March 2019 rating decision. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.300). Clear and Unmistakable Error For a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in effect at the time were incorrectly applied. See Phillips v. Brown, 10 Vet. App. 25 (1997); Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992) (en banc). Further, the error must be “undebatable” and one which, had it not been made, would have manifestly changed the outcome at the time it was made. Id. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Id. A claim that CUE existed on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Additionally, broad-brush allegations of “failure to follow the regulations” or “failure to give due process” or any other general, non-specific claim of “error” cannot meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k) (2018). 1. Cervical Spine Disability In an unappealed July 2012 rating decision, service connection was granted and the Veteran was assigned an initial non-compensable rating for his cervical spine disability. Evidence before the RO included the Veteran’s service treatment records and the results of a VA examinations conducted in August and September 2011. He asserts that his service treatment records (STRs) show X-ray evidence of cervical degeneration disc disease with left arm radiculopathy and C6 nerve root affected, and that therefore, the assignment of a non-compensable evaluation was clear and unmistakable error. See October 2016 Statement in Support of Claim. He also asserts that a VA examination in August 2011 showed a diagnosis of cervical degenerative arthritis with subjective pain and objective evidence of X-ray of degenerative arthritis.” See March 2017 Notice of Disagreement (NOD). Applying the three- prong test for CUE, and under the first prong, the Board has considered the evidence that was of record at the time the RO evaluated this claim. Specifically, the evidence at the time included, the Veteran’s service treatment records (STRs) from September 4, 1991 to September 30, 2011; a July 2011 VCAA notice of acknowledgement; a July 2011 pre-discharge claim for compensation for a cervical spine disability; a July 2012 letter to the Veteran; and a September 2011 VA examination for the cervical spine. Among the service records were treatment reports for the cervical spine. Records in 2006 showed cervical radiculopathy at C-6. An MRI from the Kennestone Hospital showed disc herniation at C6-7. A November 2010 record, for instance, noted the Veteran’s reports of acute flareups of cervical spine symptoms. The records describe a history of chronic recurring neck pain with radiation into the right shoulder. Imaging revealed intervertebral disc degeneration at the level of C6-C7. Given the Veteran’s assertions, the STRs in question were associated with the claims file at the time of the claim, and thus, there is no indication that the correct facts, as they were known at the time of the July 2012 rating decision, were not before the adjudicator. At the time of this rating decision, the RO considered the applicable law and regulation, and specifically, 38 C.F.R. §§ 4.40 and 4.45, which requires consideration of additional factors contributing to functional loss, in determining whether a higher, compensable rating is warranted. However, it failed to consider pertinent evidence, and specifically, evidence of additional factors of functional loss from the Veteran’s STRs, but rather, solely relied on the September 2011 VA examination, in its assignment of a non-compensable rating for the cervical spine disability. Thus, in this regard, the Board finds that the RO incorrectly applied statutory provisions pertaining to functional loss, as indicated above, when it failed to consider relevant evidence from the Veteran’s STRs. Applying the second of the three-prong test, the Board has considered whether the RO’s error, in which it failed to consider evidence from the Veteran’s STRs, constitutes “undebatable” error and one which, had it not been made, would have manifestly changed the outcome at the time it was made. In this regard, the Board notes that the Veteran has been rated for his service-connected cervical spine disability under diagnostic code (DC) 5242, for degenerative arthritis of the cervical spine. Rated under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71, DCs 5003, 5242 (2018). When, however, the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a , DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent. Additionally, in evaluating disabilities of the musculoskeletal system, such as, for example, a cervical spine disability, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2017). These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 – 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). STRs, which were included in the claims file at the time of the July 2012 rating decision, reflect a diagnosis of degenerative arthritis, established by X-ray findings, as well as a history of recurring chronic pain. The history of the disability is not addressed in the rating decision, despite 38 C.F.R. § 4.1 mandating that “each disability be viewed in relation to its history.” Additionally, the Veteran’s September 2011 VA examination reflects that the Veteran described having recurring pain and other symptoms, including stiffness, spasms, and numbness, although also reflecting full range of motion that was painless. In this regard, by applying 38 C.F.R. §§ 4.40 and 4.45, the Board finds that it is undebatable that the x-ray and MRI findings, coupled with his report of pain, as well as other symptoms, including and not limited to, flare ups, stiffness, spasms, warranted a 10 percent disability rating at the time the RO rendered the July 2012 rating decision. Thus, if the RO had not committed the error, the grant a 10 percent rating would have manifestly changed the outcome of the July 2012 rating decision because the effective date of the 10 percent rating would have been established as October 1, 2011, as opposed the effective date the RO established as October 11, 2016. Applying the third-prong, and as indicated and discussed above, clear and unmistakable error was based on the record and the law that existed at the time of the July 2012 rating decision. Therefore, the Board finds that the RO committed clear and unmistakable error in the July 2012 rating decision, and thus accordingly, the proper effective date of the grant of the 10 percent rating for the service-connected cervical spine disability must be adjusted to October 1, 2011. 2. Migraines In a July 2012 rating decision, the Veteran was assigned a non-compensable rating for his migraines. He asserts that a review of his file “shows VA exam in August 2011 stated that the Veteran had a history of 3 migraines per month, severity of 8 out of 10, and a duration of 4 hours” and that “the Veteran stated that he was currently taking Advil and Tylenol for treatment of his migraines.” See March 2017 NOD. Applying the three-prong test for CUE, and under the first prong, the Board has considered the evidence that was of record at the time the RO evaluated this claim. Specifically, the evidence at the time included, the Veteran’s STRs from September 4, 1991 to September 30, 2011; a July 2011 VCAA notice of acknowledgement; a July 2011 pre-discharge claim for compensation for a cervical spine disability; a July 2012 letter to the Veteran; and an August 2011 VA examination for migraines. Given the Veteran’s assertions, the pertinent medical evidence in question—the August 2011 VA examination for migraines—was associated with the claims file at the time of the claim, and thus, there is no indication that the correct facts, as they were known at the time of the July 2012 rating decision, were not before the adjudicator. At the time of this rating decision, the RO considered the applicable law and regulations, and specifically, 38 C.F.R. § 4.124a, DC 8100, which is the rating criteria for migraine headaches. DC 8100 assigns a 10 percent disability rating for migraines “with characteristic prostrating attacks averaging one in 2 months over the last several months.” The rating criteria do not define “prostrating”, nor has the United States Court of Appeals for Veterans Claim (Court) undertaken to define “prostrating”, see Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quoted DC 8100 verbatim but did not specifically address the matter of what is a prostrating attack. However, by way of reference, the Board notes that according to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), “prostration” is defined as “extreme exhaustion or powerlessness.” Here, the evidence from the August 2011 VA examination did not show that the Veteran suffered from characteristic prostrating attacks (or extreme exhaustion and powerless), as a result of his migraine headaches, averaging one in two months. As a matter of fact, at this August 2011 VA examination, despite reporting a pain intensity of 8 out of 10, for the severity of his headaches, the Veteran indicated that he was able to work, with the use of medication. Thus, this is not reflective of migraine headaches that are productive of extreme exhaustion and powerlessness. Accordingly, the Board finds that the RO applied the correct statutory and regulatory provision, in the assignment of a non-compensable disability rating for the Veteran’s service-connected migraine headaches. As the criterion under the first prong of the test for CUE is not met, further consideration of criteria under the second and third prongs of the test for CUE are moot. Therefore, based on the foregoing reasons, the RO’s assignment of a zero percent, non-compensable rating for the Veteran’s service-connected migraine headaches does not constitute clear and unmistakable error. Earlier Effective Date The Veteran asserts that he is entitled to an earlier effective date for his increased, 10 percent disability rating for his cervical spine disability, and specifically, October 1, 2011. See March 2017 NOD. However, this claim is moot. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2012). Specifically, the Board has now determined that the July 2012 rating decision contained clear and unmistakable error in the assignment of a non-compensable rating and that a 10 percent disability rating for the cervical spine disability, is granted effective October 1, 2011, the day following the Veteran’s discharge from service. Thus, as there remains no allegations of errors of fact or law for appellate consideration, this claim for an earlier effective date for the grant of a 10 percent disability rating for a cervical spine disability is moot, and thus dismissed. REASONS FOR REMAND The Board regrets further delay, but additional development is necessary before a decision may be rendered on the remaining issue on appeal. The Veteran asserts an increased compensable rating for his service-connected migraines. Medical treatment records reflect that the Veteran complained of a worsening of his migraines. See e.g. May 2017 Follow-Up Note. However, treatment records have not been associated with the Veteran’s claims file since 2017, and the last time the Veteran had a VA examination on the nature and severity of his migraines was in January 2017. Therefore, a remand is required for the RO to update the Veteran’s file with the most recent treatment record, and scheduling the Veteran for a contemporaneous VA examination to determine the current severity of his migraines. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (finding that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. Obtain the requisite authorization and release from the Veteran and obtain all outstanding VA and private treatment records and associate them with the claims file, including and not limited to treatment records from May 2017 to the current period. 2. Thereafter, schedule the Veteran for a new VA examination to determine the current severity of his migraines. The appropriate disability benefits questionnaire form should be utilized, with all questions completed. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vanessa-Nola Pratt The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.