Citation Nr: 21003449 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-23 262 DATE: January 21, 2021 ORDER The request for revision of a January 11, 2012 rating decision denying service connection for reduced lung capacity based on clear and mistakable error (CUE) is denied. As new and material evidence has been received, the claim for entitlement to service connection for reduced lung capacity is reopened; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for reduced lung capacity, to include as due to asbestos exposure, is remanded. FINDINGS OF FACT 1. In a January 2012 rating decision, the RO denied service connection for reduced lung capacity due to asbestos exposure. 2. The statutory or regulatory provisions extant at the time of the January 2012 rating decision were correctly applied; and although the correct facts were not before the RO, the correct facts would not have manifestly changed the outcome of the rating decision at the time it was made. 3. In a January 2012 rating decision, the RO denied the Veteran’s claim for reduced lung capacity, to include as due to asbestos exposure; the Veteran did not submit a Notice of Disagreement, no new and material evidence was received within one year of the decision, and the decision became final. 4. The evidence received since the January 2012 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility substantiating the Veteran’s claim for entitlement to service connection for reduced lung capacity, to include as due to asbestos exposure. CONCLUSIONS OF LAW 1. The criteria for revision of a January 11, 2012 rating decision denying service connection for reduced lung capacity based on CUE have not been met. 38 U.S.C. § 7111; 38 C.F.R. § 3.105. 2. The January 2012 rating decision that denied the claim of entitlement to service connection for reduced lung capacity, to include as due to asbestos exposure, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for reduced lung capacity, to include as due to asbestos exposure. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Coast Guard from November 1981 to April 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a July 2020 Virtual Board hearing. A transcript of this hearing is of record. CUE 1. The request for revision of a January 11, 2012 rating decision denying service connection for reduced lung capacity based on CUE Unappealed rating decisions are final, and a final rating decision is not subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of clear and unmistakable error, as provided in 38 C.F.R. § 3.105. See 38 C.F.R. § 3.104(a). If the evidence establishes clear and unmistakable error, the prior decision will be reversed or amended. A finding of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed or amended decision. There is a three part test for clear and unmistakable error: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (to prove the existence of clear and unmistakable error as set forth in 38 C.F.R. § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Clear and unmistakable errors “are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Russell, 3 Vet. App. at 313. A determination of clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). An error cannot be clear and unmistakable error unless it is absolutely clear that a different result would have ensued, but for the error. 38 U.S.C. § 7111(e). The Veteran asserts that the RO committed CUE in the January 2012 rating decision when it denied service connection for reduced lung capacity, in part, on the finding that the Veteran failed to report for his November 2011 VA examination. The Veteran contends that he did attend that November 2011 VA examination, and VA misplaced or overlooked that examination report. Because the RO denied the Veteran’s service connection claim, because he failed to report for his November 2011 VA examination, the Veteran contends that the RO committed CUE since, he did, in fact, attend the VA examination, and the RO should have known that. The Veteran contends that if the RO had the November 2011 VA examination report before it at the time of its decision, the RO would have found that the Veteran had a current respiratory diagnosis. At the time of the January 11, 2012 rating decision, applicable VA law has remained unchanged with current law. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a preliminary matter, the Board finds that the Veteran’s CUE allegations have been asserted with sufficient specificity; therefore, the Board may continue to address the claims on their merits. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). At the time of the January 2012 rating decision, the evidence of record included service treatment records, service records, private treatment records from 2007 to 2011, lay statements, and a November 2011 VA notification letter from the Gainesville VA Medical Center. In a March 2011 statement, the Veteran asserted that his reduced lung capacity was caused by his exposure to asbestos and other agents while serving in the engine rooms of Coast Guard vessels. In a June 2011 statement, the chief-in-charge of the fireroom onboard the U.S. Coast Guard Cutter (CGC) Bibb (WHEC-31) attested to the Veteran’s service aboard the vessel from 1982 to 1983, his assignment to the fireroom, and his exposure to asbestos while performing his duties in the maintenance of the boilers. The Veteran’s service treatment records did not document any findings related to any complaints, treatment, or diagnosis for any respiratory problems. According to an interpretation of a March 2011 private pulmonary function report (PFT), the Veteran had a mild restrictive ventilatory defect and evidence of a diffusion defect. In the January 2012 rating decision, the RO stated that the records showed that the Veteran failed to report for a VA examination on November 17, 2011. Indeed, the record does include a report indicating that the Veteran’s VA examination scheduled for November 17, 2011 had been cancelled, because the Veteran failed to report. The RO explained that evidence expected from this examination which might have been material to the outcome of this claim could not be considered. In making the determination to deny service connection, the RO found that the records did not show a current diagnosis or treatment for a current lung condition that would relate to the Veteran’s time in service. In May 2013, the Veteran submitted a copy of the November 2011 VA examination report. The report showed that the Veteran had actually attended his VA respiratory examination as scheduled on November 17, 2011. The VA examiner noted that the Veteran had been diagnosed with restrictive lung disease and referenced the March 2011 private PFT report. The VA examiner performed an objective evaluation and found that the Veteran’s November 2011 PFT results were normal. The VA examiner concluded that the Veteran had no current lung or respiratory diagnosis for which to give an opinion. There was also no objective evidence of asbestosis. The VA examiner conceded that the Veteran had asbestos exposure and other occupational exposures; however, no permanent or significant restrictive ventilatory defect was found. In a February 2014 rating decision, the RO found that no CUE had been found with respect to the January 2012 rating decision, because the VA examination results were not available for review and consideration at the time of the January 2012 rating decision. The Veteran does not assert, and the evidence does not demonstrate, that the RO, in its January 2012 rating decision, incorrectly applied the law or regulatory provisions that were extant at the time. Essentially, the Veteran asserts that that the RO committed CUE in its January 2012 rating decision when it incorrectly found that the Veteran had failed to report for his November 2011 VA examination, and that if the RO had reviewed and considered the November 2011 VA examination, the RO would have found that the Veteran had a current diagnosis for a respiratory disorder based on the results of the examination. The Veteran is essentially asserting that the correct facts were not before the RO at the time of the January 2012 rating decision. The question is whether the RO should have known of the existence of the November 2011 VA examination report despite not receiving a copy of the report until after issuing its January 2012 rating decision. In a recent decision of the U.S. Federal Circuit Court of Appeals (Federal Circuit), Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020), the Federal Circuit found that evidence is constructively received by a VA adjudicator if it was generated by the VA or was submitted to the VA and can reasonably be expected to be connected to the veteran’s claim, with no requirement that the VA adjudicator have any actual knowledge of the evidence. In this case, the evidence clearly demonstrates that the Veteran did attend his VA examination as scheduled in November 2011. Although the RO was not aware of the November 2011 VA examination at the time of the January 2012 decision, and did not become aware of the November 2011 VA examination until May 2013, when the Veteran submitted a copy of the VA examination report, the evidence was still a part of the record. Under Lang, actual knowledge of the VA examination report is not required. Rather, because the November 2011 VA examination report was a VA-generated document and was reasonably related to his service connection claim, that November 2011 VA examination was in the VA adjudicator’s constructive possession. Therefore, the Board finds that at the time of the January 2012 rating decision, when the RO found that the Veteran had failed to attend his November 2011 VA examination, the RO did not have the correct facts before it. Nevertheless, the Board finds that even though the correct facts, as they were known at the time of the January 2012 rating decision, were not before the RO, such error was not outcome-determinative. In the January 2012 rating decision, the RO denied service connection for reduced lung capacity, because the records showed no current diagnosis or treatment for a current lung condition that would relate to the Veteran’s time in service. However, the November 2011 VA examiner found that the Veteran did not have a current lung or respiratory diagnosis for which to give an opinion and that there was no objective evidence of asbestosis. The November 2011 VA examination report also indicated that the Veteran’s private PFT showed a diagnosis for restrictive lung disease. Accordingly, even if the RO had found that the November 2011 VA examination report showed evidence of a current respiratory diagnosis, the VA examiner did not provide an etiological opinion. Therefore, as none of the evidence of record at the time of the January 2012 rating decision established a relationship between the Veteran’s current respiratory diagnosis and his active duty service, the RO’s failure to consider the Veteran’s November 2011 VA examination was not an error that would have manifestly changed the outcome of his claim for service connection for reduced lung capacity, as service connection for reduced lung capacity would have been denied either for no evidence of a current diagnosis or for no evidence of a link between his current diagnosis and his military service. For these reasons, the Board finds that the statutory or regulatory provisions extant at the time of the January 2012 rating decision were correctly applied, and although the correct facts, as they were known at the time, were not before the RO in January 2012, the correct facts would not have manifestly changed the outcome of the January 2012 rating decision. Accordingly, as the Veteran has not demonstrated CUE in the January 11, 2012 rating decision that denied service connection for reduced lung capacity, the request for revision on the basis of CUE must be denied. New and Material Evidence 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for reduced lung capacity Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 19.20, 19.21, 19.22, 19.52. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As discussed above, in the January 2012 rating decision, the RO denied the Veteran’s claim for service connection for reduced lung capacity due to asbestos exposure, because the records showed no current diagnosis or treatment for a current lung condition that would relate to the Veteran’s time in service. That decision is final. Since the Veteran’s last prior final denial in January 2012, the record includes a November 2013 VA treatment record documenting the Veteran’s diagnosis for chronic obstructive pulmonary disease (COPD). The Board finds that this evidence is new, as it was not previously of record, and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. The November 2013 VA treatment record will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for reduced lung capacity, to include as due to asbestos exposure, is reopened. REASONS FOR REMAND 1. Entitlement to service connection for reduced lung capacity, to include as due to asbestos exposure, is remanded. In the November 2011 VA examination, the VA examiner noted that the Veteran had a diagnosis for restrictive lung disease and referenced a March 2011 private PFT report. However, after conducting an objective evaluation, the November 2011 VA examiner found that a November 2011 PFT report showed that the Veteran’s results were normal and concluded that the Veteran did not have a lung or respiratory diagnosis. The November 2011 VA examiner did not explain why the March 2011 private PFT finding of restrictive lung disease was not sufficient evidence to establish a current diagnosis. Because the November 2011 VA examiner’s conclusions appear to contradict other findings within the examination report with no explanation, the Board finds that the November 2011 VA examination is inadequate for adjudicative purposes. In January 2014, the Veteran underwent another VA examination. After reviewing the Veteran’s medical records and conducting an objective evaluation, the January 2014 VA examiner found that the Veteran had multiple respiratory conditions. The January 2014 VA examiner found that the Veteran had exercise-induced asthma, obstructive sleep apnea, and COPD; however, the COPD diagnosis was noted to be based on the Veteran’s report. According to a January 2014 VA PFT, the January 2014 VA examiner also found that the Veteran had intrinsic restrictive ventilatory defect. In making that determination, the January 2014 VA examiner also stated that the PFT results were “not reliable due to inconsistent patient effort and variability in measurements per pulmonologist.” Moreover, the January 2014 VA examiner noted that the Veteran’s PFT results in November 2011 were normal. Overall, the January 2014 VA examiner concluded that there was “gross inconsistancy [sic] and variability in all phases of pulmonary function testing.” Given the January 2014 VA examiner’s findings that the PFT results in November 2011 and January 2014 were unreliable, any conclusions regarding the Veteran’s current respiratory diagnoses are also unreliable. Accordingly, the Board finds that the January 2014 VA examination is inadequate for adjudicative purposes. For the above reasons, the Board finds that a remand is required to obtain a new VA examination to determine whether the Veteran has a current respiratory diagnosis, and if so, to provide an opinion as to whether any current respiratory diagnosis is etiologically related to his active duty service, to include his in-service asbestos exposure. Additionally, a review of the record reveals that the Veteran submitted a Respiratory Conditions Disability Benefits Questionnaire (DBQ) in November 2014. However, the current copy of the DBQ is incomplete, as the record only includes five pages and is missing, at least, the page indicating the name of the physician who completed the DBQ along with that physician’s dated signature. Although the evidence in the DBQ tends to suggest that the Veteran has a current diagnosis for COPD, the Board cannot rely on an incomplete DBQ with no indication who conducted the examination. Accordingly, on remand, the Veteran should be provided another opportunity to submit a complete copy of this Respiratory Conditions DBQ. The matter is REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran’s respiratory disorder that are not currently of record. 2. Provide the Veteran an opportunity to submit a complete copy of the Respiratory Conditions DBQ that he sent to VA in November 2014. 3. Schedule the Veteran for a VA examination by an appropriately qualified clinician to determine the nature and etiology of any respiratory disorder. The examiner should respond to the following: (a.) Does the Veteran have a diagnosis for any respiratory disorder? If so, please identify each diagnosis. (b.) For each diagnosis, provide an opinion regarding whether the Veteran’s respiratory disorder is at least as likely as not related to his active duty service, to include in-service asbestos exposure. The examiner should ensure that any diagnostic testing conducted, including pulmonary function testing, is reliable and adequate for purposes of identifying the Veteran’s respiratory diagnosis. In providing the above opinion, the examiner should assume that the Veteran was exposed to asbestos during active duty service from 1982 to 1983 as a result of his duties working on boiler maintenance aboard a Coast Guard Cutter. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.