Citation Nr: 21001406 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 05-32 536 DATE: January 8, 2021 ORDER Entitlement to an increased or separate rating for residuals of a colostomy, to include based on clear and unmistakable error (CUE), in the March 1978 rating decision is denied. Restoration of a 30 percent rating for residuals of a laparotomy involving muscle groups XIX under DC 5319 effective September 1, 1977, is granted. Restoration of a 10 percent rating for a tender scar under DC 7804, effective September 1, 1977, is granted. Entitlement to an effective date earlier than June 25, 2001, for the award of a 100 percent rating for a psychiatric disorder, to include as due to CUE in prior Regional Office rating decisions in January 1972, March 1978, February 1984, December 1985, March 1996, and July 2002 is denied. REMANDED Entitlement to an increased rating for hearing loss, evaluated as noncompensably disabling prior to July 22, 2008, and in excess of 10 percent disabling thereafter is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for a nervous condition was granted in a March 1978 rating decision and his rating for a psychophysiological gastrointestinal disability was increased as a result. This March 1978 rating decision became final because the Veteran did not submit a notice of disagreement. 2. The correct facts, as known at the time, were before the VA adjudicators in March 1978 and the statutory and regulatory provisions extant at the time were correctly applied. 3. The Veteran was not provided notice or afforded due process protections prior to the reduction of his rating for the residuals of his laparotomy, involving muscle groups XIX. 4. The Veteran was not provided notice or afforded due process protections prior to the reduction of his rating for a scar. 5. Prior Regional Office rating decisions in January 1972, March 1978, February 1984, December 1985, March 1996, and July 2002 are final. The correct facts, as known at the time, were before the VA adjudicators in March 1978 and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating for residuals of a colostomy, to include based on clear and unmistakable error (CUE), in the March 1978 rating decision have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The criteria for restoration of a 30 percent rating for residuals laparotomy involving muscle groups XIX under DC 5319 effective September 1, 1977 have been met because the reduction was clearly erroneous and is void ab initio. 38 C.F.R. § 3.344. 3. The criteria for restoration of a 10 percent rating for a tender scar under DC 7804, effective September 1, 1977, because the reduction was clearly erroneous and is void ab initio. 38 C.F.R. § 3.344. 4. The criteria for entitlement to an effective date earlier than June 25, 2001, for the award of a 100 percent rating for a psychiatric disorder, to include as due to CUE in prior Regional Office rating decisions in January 1972, March 1978, February 1984, December 1985, March 1996, and July 2002 have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1969 to September 1971, including combat service in the Republic of Vietnam for which he received two Bronze Stars and two Purple Heart Medals. In October 2012, the Veteran and his spouse presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge. This appeal has been before the Board on numerous occasions, and most recently in July 2018, and March 2020, when the Board also remanded these issues for additional development. During this appeal, the Veteran also sought reconsideration of the Board’s January 1983 decision declining to assign a rating in excess of 30 percent for psychophysiologic gastrointestinal reaction with residuals of colostomy. The Board denied the motion for reconsideration in June 2019. The Board notes the Veteran’s assertions that he has appealed this decision. The Board again notes the Veteran’s assertions regarding CUE and symphysis pubis in his brief regarding entitlement to an earlier effective date for a psychological disability. See September 2020 third party correspondence. In July 2018, this issue was referred by the Board and is not currently on appeal. CUE The Veteran seeks revisions of January 1972, March 1978, February 1984, December 1985, March 1996, and July 2002 rating decisions due to clear and unmistakable error. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, these prior rating decisions became final because the Veteran did not file a notice of disagreement. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of “error” It is the kind of error of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of error.” Fugo v. Brown, 6. Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. At 44. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated[;]” and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time the decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F. 3d 1328 (Fed. Cir. 1999). A manifest change in outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. At 442. As a threshold matter, the Board will address the arguments advanced by the Veteran that allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). Entitlement to Separate Rating for Psychiatric and Gastrointestinal Veteran’s Contentions The Veteran asserts that he is entitled to an increased rating for residuals of a colostomy due to CUE in a March 1978 rating decision. More specifically, he asserts that the evidence can lead to only one conclusion that Veteran’s psychiatric disability and gastrointestinal disability were not mere aspects of a single disability entity but were separate and distinct disabilities independently resulting in functional loss and as a result, separate ratings should have been granted. He also asserts that because the Veteran engaged in combat, VA should have considered whether his psychiatric disability was directly related to service. He also asserts that the RO improperly reduced service connection ratings that had been in effect for more than 5 years despite absence of any medical evidence indicating improvement. See May 2018 third party correspondence. He highlights that the RO gave the Veteran a 30 percent rating under the muscle groups rating, a 100 percent due to hospitalization, a 30 percent following that which was subsequently reduced to 10 percent and reduced his scar rating, in the absence of medical evidence indicating improvement. Id. The March 1978 rating decision granted service connection for a nervous condition by the inclusion as a psychophysiological gastrointestinal reaction. The RO increased the Veteran’s rating from 10 to 30 percent under diagnostic code. The Veteran’s service treatment records were silent for any complaints or diagnosis of a nervous condition. On VA psychiatric examination, the Veteran complained of problems controlling his bowels nervousness depression and irritability. The RO also noted the Veteran disliked his job and had marital problems. Analysis The Board finds there is no CUE in the March 1978 rating decision that would warrant the revision resulting in separate ratings for a psychological and gastrointestinal disability. At the time of the March 1978 rating decision, when the veteran was granted service connection for his gastrointestinal disorder, the medical evidence indicated that this was a psychophysiological condition. Therefore, he was evaluated under Diagnostic Code 9502 for psychological factors affecting gastrointestinal condition. The Schedule indicated that this disorder was to be evaluated according to the psychological factors affecting the physical condition by the general rating formula for psychoneurotic disorders. Under note (4) under the General Rating Formula for Psychoneurotic Disorders and note (2) under Psychological Factors Affecting Physical Condition, it was indicated that a percentage evaluation would be assigned representing whether the major degree of disability resulted from the organic or psychological aspects of a disorder. As a result, the Veterans’ contentions that the RO was required to assign a separate rating for both the psychological and gastrointestinal symptoms amounts to a disagreement with how the facts were weighed. Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)); Fugo, 6 Vet. App. at 43-44. This is especially true in light of the fact that the rating board was permitted to rely on its own medical judgment to support its conclusions. Hime v. McDonald, 28 Vet. App. 1, 7 (2016) (finding that a rating panel was not prohibited from relying upon its own medical judgement to support its conclusion where the rating panel included s medical member); cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). The Board notes that it was regular practice of the VA in 1978 to have three-member rating panels, and that on the rating board, one of the members “will be a medical doctor” (i.e. the medical member). As can be seen on the face of the March 1978 rating decision, a medical member of the rating board participated in this decision. MacKlem v. Shinseki, 24 Vet. App. 63, 70 (2010) (affirmed No. 2011-7034 (Fed. Cir. Jan. 11, 2012)); Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (holding that the VA’s position was substantially justified in a pre-Colvin decision relying on its own medical judgment). “[T]he presence of the medical member on the [rating board], pre-Colvin, allowed the [b]oard to assess the probative value of medical opinions in a way that it now cannot, through the exercise of its own medical expertise and judgment.” Hime, 28 Vet. App. at 8. Thus, to the extent the March 1978 determination is alleged to be contrary to the medical evidence of record, the Board finds that the rating board apparently relied upon the medical judgment of the medical member, among other things, in deciding the claim. While the Veteran may not agree with the rating board’s determination, this is not a basis for finding CUE. The Board notes that at the time of the March 1978 rating decision, the record did not support the contention that the Veteran had a nervous condition related to his combat service. The Veteran is in receipt of combat medals and as noted in previous decisions by the RO was wounded while on active duty. However, the Veteran’s specifically noted contentions regarding nervousness and psychological distress related to his gastrointestinal disorder. The lay statements, as noted by both the VA examination and the RO specifically highlight his contentions. At that time, the Veteran did not assert that his combat service resulted in or caused psychiatric distress. Notably, the RO still considered whether there was evidence that a psychiatric disability had its onset in service. The March 1978 rating decision specifically highlights that the Veteran’s service records do not contain any notations, treatment, or complaints of psychiatric issues. The Board notes there is a notation suggesting that the Veteran had depression and anxiety. The Veteran asserts that Clemons v. Shinseki, 23 Vet. App. 1 (2009), coupled with his combat service should have resulted in the grant of a separate rating for the psychiatric disability. However, subsequent interpretations of law cannot form a basis of CUE motion. See George v. Wilkie, 30 Vet. App. 364; Berger v. Brown, 10 Vet. App. 166 (1997). CUE residuals of colostomy-rating reduction Veteran’s Contentions As noted above, the Veteran asserts that the RO improperly reduced service connection ratings that had been in effect for more than 5 years despite absence of any medical evidence indicating improvement. See May 2018 third party correspondence; see also March 1978 rating decision. He highlights that the RO gave the Veteran a 30 percent rating under the muscle groups rating, a 100 percent due to hospitalization, a 30 percent following that which was subsequently reduced to 10 percent and reduced his scar rating, in the absence of medical evidence indicating improvement. Id.; See March 1978 rating decision. Analysis Procedurally, the RO initially granted service connection for: (1) residuals of a colostomy and assigned a 10 percent rating under DC 7301, (2) residual laparotomy and incisional hernia repair involving muscle group XIX and assigned a 30 percent rating under DC 5319, (3) tender scar of the abdomen and assigned a 10 percent rating under DC 7804. See January 1972 rating decision. Subsequently, the RO granted a 100 percent rating effective September 1976, 30 percent effective November 1976, and a 10 percent effective September 1977 under DC 5319. See March 1978 rating decision. This decision combined the rating for residual laparotomy involving muscle group XIX with a tender scar. In doing so, the RO concluded that the tender scar was now appropriately rated under the muscle group rating criteria. The tender scar rating under DC 7804 was discontinued. The RO also added residual colostomy with psychophysiological reaction and assigned a 10 percent rating effective September 1971 and a 30 percent rating effective September 1977 under DC 7301-7319. Id. In January 1981, the Veteran filed a claim for increase. When determining whether a reduction was proper, the Board must first decide whether the RO satisfied the procedural due process requirements of 38 C.F.R. § 3.105(e). At the time of the March 1978 rating decision this provision stated, Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from date of notice to the payee expires. The veteran will be notified at his or her latest address of record of the action taken and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence. (38 U.S.C. § 3012(b)(6)). The due process requirements of 38 C.F.R. § 3.105 (e) were established to serve as a procedural protection against improper reductions of disability ratings. The United States Court of Appeals for Veterans Claims has consistently held that when a RO reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio (i.e., from the beginning). See Greyzck v. West, 12 Vet. App. 288, 292 (1999); see also Hudgens v. Gibson, 26 Vet. App. 558, 564 (2014). The law provides that where a rating reduction was made without observance of law, the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 598, 595 (1991). In this case, the Board finds that the necessary procedural steps were not followed, and thus the reduction at issue is void from its inception. Thus, as of September 1, 1977, (the effective date of the reductions at issue in this case) the Veteran is entitled to payment of restoration. Because the Veteran was not provided proper notice and due process protections as set forth in 38 C.F.R. § 3.105(e), the reductions were improper and void ab initio. The Board will restore a 30 percent rating under DC 5319, and a 10 percent rating for a tender scar of the abdomen under DC 7804, effective September 1, 1977. During this time, the rating under DC 7301-7319 the Veteran’s was increased to 30 percent so there was no reduction with this diagnostic code. Earlier Effective Date 100% for psychological disability Veteran’s Contentions The Veteran asserts that an earlier effective date for the grant of 100 percent is warranted for the psychological disability. The Veteran asserts that the March 1978 rating decision failed to grant service connection for a nervous condition and adequately compensate him for his disability. See May 2018 third party correspondence. He also asserts generally that prior decisions should be revised to grant a higher rating for a psychological disability. Analysis The Board notes the Veteran’s general contentions that the Board should revise any previous rating decision to award higher ratings for the disability does not specifically allege CUE with the requisite specificity. However, the Board has addressed above the Veteran’s specific contentions regarding the March 1978 rating decision and the assignment of separate rating for both a psychological and gastrointestinal disability. See September 2020 third party correspondence. As noted above, in March 1978, the RO specifically noted that it granted service connection for a nervous condition by inclusion of the psychophysiological reaction of the gastrointestinal system. The RO then increased the Veteran’s rating from 10 to 30 percent. As a result, here, the Veteran’s assertion that he was not adequately compensated for his disability is an assertion that his disability was more severe than rated. However, given the medical member on the rating board and the findings (as noted above) regarding the Veteran’s disability, this amounts to a disagreement as to how the facts were weighed or evaluated by the adjudicator. However, “[i]t is the prerogative of the factfinder . . . to interpret the evidence and draw reasonable inferences from it.” Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. The Veteran also advanced arguments that an increased rating of 100 percent is warranted as of 1983, when he requested a VA examination for posttraumatic stress disorder (PTSD). See October 2012 Hr’g Tr. However, this assertion is essentially an allegation that the effective date of service connection for PTSD is in error, not the rating. The Veteran was not service connected for PTSD at this time. Thus, there is no basis to assign an earlier effective date for the grant of 100 percent for PTSD. REASONS FOR REMAND Hearing Loss The Veteran seeks an increased rating for his bilateral hearing loss. He asserts that the last VA examination of record was inadequate because his symptoms were more severe, and the VA examiner failed to address the impact of his symptoms on his functional impairment. As a result, remand is warranted for a new VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records.   2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) for the Veteran’s hearing loss. The VA examiner should highlight the Veteran’s contentions regarding functional impact of his hearing loss disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.Ijitimehin, Associate Counsel 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.