Citation Nr: 21004309 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 19-19 930 DATE: January 26, 2021 ORDER Entitlement to an effective date prior to August 25, 2014, for a 100 percent rating for hypothyroidism with bradycardia, to include as a result of clear and unmistakable error (CUE) in an August 2006 rating decision is denied. FINDINGS OF FACT 1. On August 24, 2006, and May 3, 2012, the correct facts, as they were known at the time, were before the AOJ, and the statutory and regulatory provisions extant at the time were correctly applied. 2. An August 24, 2006, rating decision established service connection for hypothyroidism. The Veteran was notified of the decision and of his appellate rights, but did not perfect an appeal of the denial of that decision. Therefore, the decision became final. 3. A May 3, 2012, rating decision increased the rating for hypothyroidism. The Veteran was notified of the decision and of his appellate rights, but did not perfect an appeal of the denial of that decision. Therefore, the decision became final. 4. VA received the Veteran's informal claim for service connection for a heart disability secondary to hypothyroidism on January 7, 2015. 5. For the year prior to January 7, 2015, it was not factually ascertainable that the hypothyroidism warranted a rating in excess of 30 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of the August 24, 2006, rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The criteria for an effective date earlier than August 25, 2014, for a 100 percent rating for hypothyroidism with bradycardia are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1999 to October 2005. In March 2020, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). CUE Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory 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. § 3.105(a). CUE 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. Simply to claim CUE on the basis that previous decisions had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Neither can broad allegations of failure to follow the regulations or failure to give due process, or any other general, nonspecific claim of error. In addition, failure to address a specific regulatory provision is legally considered to be non-prejudicial to the Veteran unless the outcome would have been manifestly different. Fugo v. Brown, 6 Vet. App. 40, (1993). There is a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator, requiring 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994). 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. Porter v. Brown, 5 Vet. App. 233 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the time of the decision for which CUE is alleged. The standard is not whether it is reasonable to conclude that the outcome would have been different. King v. Shinseki, 26 Vet. App. 433 (2014). If the error alleged is not the type of error that would be CUE on its face, or if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a manifestly different result, then the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994). VA’s failure in the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003). Allegations that previous adjudications improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. Baldwin v. West, 13 Vet. App. 1 (1999). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory 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. § 3.105(a). Earlier Effective Date Generally, the effective date for establishing service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active duty service or date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). The effective date for establishing service connection based on the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Hypothyroidism is rated under Diagnostic Code 7903. Under former Diagnostic Code 7903, a 10 percent rating is assigned when hypothyroidism is manifested by fatigability, or continuous medication is required for control. A 30 percent rating requires fatigability, constipation, and mental sluggishness. A 60 percent rating requires muscular weakness, mental disturbance, and weight gain. A 100 percent rating requires cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119. VA revised the criteria for rating endocrine disabilities and disabilities of the endocrine system, effective on December 10, 2017. 82 Fed. Reg. 50802-50806 (November 2, 2017). VA has a duty to adjudicate the claim under the former criteria during the entire appeal period, and to consider the old and revised criteria for the period beginning on the effective date of the new provisions. DeSousa v. Gober, 10 Vet. App. 461 (1997); VAOPGCPREC 3-2000 (2000); VAOPGCPREC 7-2003 (2003). Currently, hypothyroidism is rated 30 percent for hypothyroidism without myxedema. That rating shall continue for six months after initial diagnosis. Thereafter, the rater will rate residuals of disease or medical treatment under the most appropriate diagnostic codes under the appropriate body system such as eye, digestive, or mental disorders. If eye involvement, such as exophthalmos, corneal ulcer, blurred vision, or diplopia, is also present due to thyroid disease, those will be rated under the appropriate diagnostic codes in §4.79, under the Schedule of Ratings for Eye Disabilities. A 100 percent rating requires hypothyroidism manifesting as myxedema (cold intolerance, muscular weakness, cardiovascular involvement (including, but not limited to hypotension, bradycardia, and pericardial effusion), and mental disturbance (including, but not limited to dementia, slowing of thought and depression)). That rating shall continue for six months beyond the date that an examining physician has determined crisis stabilization. Thereafter, the residual effects of hypothyroidism shall be rated under the appropriate diagnostic codes within the appropriate body systems, such as eye, digestive, and mental disorders. 38 C.F.R. § 4.119, Diagnostic Code 7903. Entitlement to a rating in excess of 30 percent prior to August 25, 2014, for hypothyroidism with bradycardia to include as a result of CUE in an August 2006 rating decision The Veteran asserts that a100 percent rating for hypothyroidism with bradycardia was warranted prior to August 25, 2014. An August 24, 2006 rating decision established service connection for hypothyroidism claimed as Graves’ disease and assigned a 10 percent rating, effective October 8, 2005, the day following the date of separation from service. In April 2010, the Veteran submitted claims for an increased rating for hypothyroidism and service connection for a “heart condition, to include as secondary to acquired psychiatric disorders.” A May 2012 rating decision increased the rating for hypothyroidism from 10 percent to 30 percent effective April 30, 2010, and denied service connection for heart disease. In September 2012, the Veteran submitted a claim for a kidney disability which the AOJ erroneously construed as a claim to include a claim for an increased rating for hypothyroidism. In February 2013, the Veteran stated that the September 2012 claim was submitted for an increase rating for a left knee disability and service connection for Graves’ disease, kidney disease (secondary to Graves’ disease), joint pain, hypertension, hemorrhoids, and sleep apnea. The Veteran stated that he did not want to pursue a claim for an increased rating for hypothyroidism. An August 2013 rating decision established service connection for hemorrhoids; continued a 0 percent rating for a left knee disability; and denied service connection for kidney disease, joint pain, herpes infection, Graves’ disease, hypertension, a digestive condition (also claimed as irritable bowel syndrome), and sleep apnea. The Veteran submitted an August 25, 2014, notice of disagreement stating that he had been diagnosed with Graves’ disease while in service and that he had “an absolute Bradycardia disease (heart disease); which [was] related to [the] Graves’ disease. In January 2015, the Veteran submitted claims for an increased rating for hypothyroidism and service connection for bradycardia. In March 2015, the Veteran stated that the January 2015 claim was only for bradycardia and heart condition as secondary to hypothyroidism. A May 2015 rating decision denied service connection for bradycardia and a heart condition. The Veteran submitted a timely June 2015 Notice of Disagreement. In May 2017, the Veteran submitted a claim for an increased rating for hypothyroidism. In a June 2017 rating decision, the AOJ added bradycardia to the service-connected hypothyroidism disability and increased the rating from 30 percent to 100 percent, effective January 7, 2015. In an August 2017 rating decision, the effective date for a 100 percent rating for hypothyroidism with bradycardia was changed to August 25, 2014. The Veteran asserts that entitlement to a 100 percent rating for hypothyroidism with bradycardia should have been established as of October 8, 2005, the day following separation from active service, since bradycardia had been present since service. In March 2020, the Board construed the Veteran’s assertions as a claim to include the issue of whether the August 2006 rating decision, which established service connection for hypothyroidism with an initial rating of 10 percent, contained clear and unmistakable error. The Board remanded the claim for the AOJ to adjudicate the CUE claim in the first instance, and readjudication of the issue of entitlement to a rating in excess of 30 percent for hyperthyroidism with bradycardia prior to August 25, 2014. Entitlement to a higher rating based on CUE Initially, the Board notes that the August 24, 2006, and May 3, 2012, rating decisions are final as the Veteran did not perfect an appeal of either decision and did not submit new and material evidence within one year of promulgation. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. After careful consideration of the arguments set forth in the Veteran's claim, the Board finds that there was not CUE in the August 24, 2006, rating decision. The Board finds that the Veteran's argument is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator. The Veteran argues that medical records showed bradycardia, and VA should have established service connection for a heart disability, to include bradycardia, as secondary to service-connected hypothyroidism. However, "[i]t is the prerogative of the factfinder . . . to interpret the evidence and draw reasonable inferences from it." Evans v. McDonald, 27 Vet. App. 180 (2014). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo v. Brown, 6 Vet. App. 40 (1993). The Veteran does not assert, and the record does not show that the correct facts were not before adjudicators. The claims file contained a September 2005 medical record showing a diagnosis of hypothyroidism, a heart rate of 68 beats per minute (bpm), and reports of chest tightness, palpitations, fatigue, “no heat intolerance and not too cold,” no anxiety, and no sleep issues. Cardiac testing showed an average heart rate of 65 beats per minutes and symptoms were correlated with “normal sinus rhythm overall” although premature atrial contractions could not be definitively ruled out. January 2006 complaints of chest pain were noted as “unlikely cardiac in nature.” A physical examination showed a heart rate of 71 bpm and an ECG showed a heart rate of 56 bpm. In July 2006, the Veteran’s heart rate was 55 bpm, he reported two loose stools a day, and he denied chest pain or palpitations. During an August 2006 VA examination, the Veteran reported that hypothyroidism caused fatigability, morning sluggishness, occasional cold intolerance, and stable body weight. The Veteran denied depression, weakness of the extremities, and constipation. Objectively, the thyroid was normal in size, there was no muscle weakness, no mental disorder noted, and August 2006 ECG results showing sinus bradycardia and a change of the inferolateral wall. After a review of the evidence, a 10 percent rating was assigned in an August 24, 2006 rating decision, based on hypothyroidism which required daily medication and caused fatigue. The Board notes that “sinus bradycardia” and “ischemia change in the inferolateral wall” were specifically acknowledged in the rating decision. Even assuming arguendo that the August 24, 2006 rating decision contained an undebatable error in an alleged failure to establish service connection for bradycardia on a secondary basis, it is not undebatable that the error, had it not been made, would have manifestly changed the outcome of the decision. The Board finds that in determining the rating for hypothyroidism, the adjudicators properly applied the relevant statutory and regulatory provisions in existence at the time of the decision. A clinical finding or symptom such as bradycardia (a slow heartbeat) alone does not constitute a disability without an identified basis for the finding or symptom. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Therefore, service connection may not be established for bradycardia on the basis of clear and unmistakable error as the evidence of record does not clearly and unmistakably establish that any bradycardia was due to or the result of service-connected hypothyroidism.. Under former Diagnostic Code 7903, an assignment of a 10 percent required hypothyroidism manifested by fatigability, or continuous medication for control. A 30 percent rating required fatigability, constipation, and mental sluggishness. A 60 percent rating required muscular weakness, mental disturbance, and weight gain. A 100 percent rating required cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119. As the August 24, 2006, evaluation was based on symptoms of fatigue and daily medication use, a separate or higher rating under Diagnostic Code 7903 was not warranted, even with symptoms of bradycardia. Therefore, any error would not have manifestly changed the outcome at the time it was made and cannot be basis for a CUE. The Board cannot conclude that the evidence of record at the time of the August 24, 2006, rating decision compelled the conclusion, to which no reasonable minds could differ, that an initial rating in excess of 10 percent was warranted for the hypothyroidism. The Veteran has not shown that the incorrect facts were before the AOJ at the time of the August 24, 2006 rating decision or that the law was incorrectly applied such that the outcome would have been undebatably different. The August 24, 2006 rating decision specifically notes review of the evidence. The Board finds that the Veteran is disagreeing with the judgment of the adjudicator deciding the claim at that time. Consequently, the Veteran's arguments cannot sustain a finding of CUE in the August 24, 2006 rating decision which established service connection for hypothyroidism with a rating of 10 percent. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. Accordingly, the claim to revise or reverse the August 24, 2006, rating decision is denied. Inasmuch as the Veteran argues that a May 3, 2012, rating decision was CUE, the Board disagrees. The Veteran has not shown that the incorrect facts were before the AOJ at the time of the May 3, 2012, rating decision, or that the law was incorrectly applied such that the outcome would have been undebatably different. During a July 2010 knee VA examination, the examiner noted symptoms of fatigue, cold intolerance, palpitations, decreased concentration, depression, muscle weakness, and bulging eyes. An April 2011 abdominal X-ray report noted that there were some signs of constipation. During a December 2011 Gulf War examination, the Veteran reported that he felt his heart was “working hard.” He reported loose soft stools one to three times per day, sluggishness, feeling cold, abnormal mental acuity, and feeling as if his weight had increased. Objectively, the doctor noted continuous medication use, fatigability, mental sluggishness, and cold intolerance. A physical examination showed the Veteran’s eyes were normal with no exophthalmos, the neck was normal with no palpable thyroid enlargement or nodules, and the pulse was regular at 68 bpm. The examiner noted that the Veteran had no history, symptoms, or signs of a heart condition, “other than possible hypertension which ha[d] not yet been diagnosed formally and [wa]s likely due to renal failure.” Using Diagnostic Code 7903, the AOJ increased the rating for service-connected hypothyroidism from 10 percent to 30 percent, effective April 30, 2010, based on symptoms of fatigability, mental sluggishness, and continuous medication required for control. The Board finds that the Veteran disagrees with how the facts were weighed or evaluated by the adjudicator. Consequently, the arguments cannot sustain a finding of CUE in the May 3, 2012 rating decision. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. Accordingly, any claim to revise or reverse the May 3, 2012 rating decision must be denied. Entitlement to a rating in excess of 30 percent prior to August 25, 2014 As the August 24, 2006, and May 3, 2012, claims became final, a higher rating cannot be granted prior to the filing of a new claim for an increase in rating. The Veteran filed a claim for service connection of a heart disability, as secondary to hypothyroidism, on January 7, 2015. Therefore, an earlier date than January 7, 2015, cannot be granted unless the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim. 38 C.F.R. § 3.400 (o)(1)(2). As there must be factually ascertainable increase in disability occurred, the Board must determine whether the evidence indicates that the criteria for a rating in excess of 30 percent for hypothyroidism with bradycardia became manifest within one year prior to January 7, 2015. The Board finds that the preponderance of the evidence is against a finding that the criteria for a rating in excess of 30 percent for hypothyroidism became manifest within a year prior to January 7, 2015. After an in-person examination and review of the claims file, a May 2015 VA examiner noted a recent increase in thyroid replacement dose and instances of low heart rates. Specifically, the examiner noted a September 2013 heart rate of 70 bpm, a June 2014 heart rate of 57 bpm, and a March 2015 heart rate of 66 bpm. The examiner stated that the Veteran was “not persistently bradycardic.” The examiner opined that the “Veteran ha[d] no documented heart condition.” There are no medical records which show an increase in severity of hypothyroidism or a diagnosed heart disability, to include bradycardia, within a year prior to January 7, 2015. On August 24, 2014, the Veteran submitted a statement that he had been diagnosed with bradycardia. The Veteran also included ECG results showing 44 bpm in July 2010, 58 bpm in May 2014, and 57 bpm in June 2014. As bradycardia was noted by the May 2015 VA examiner in finding that the Veteran had no diagnosed heart condition, the Board finds that an increase in disability was not factually ascertainable within a year prior to January 7, 2015. The Board notes that the AOJ established a 100 percent rating for hypothyroidism with bradycardia effective August 25, 2014, an effective date which is more beneficial to the Veteran. The evidence does not show that between January 8, 2014, and August 25, 2014, a factually ascertainable increase in disability can be established. As the August 24, 2006, and May 3, 2012, rating decisions became final and based upon the evidence from the one-year period prior to the Veteran's January 7, 2015, claim, entitlement to a rating in excess of 30 percent prior to January 7, 2015, for hypothyroidism with bradycardia is not warranted. 38 C.F.R. § 3.400(o)(1)(2). Accordingly, as a higher rating was not factually ascertainable within a year prior to January 7, 2015, the claim for an effective date earlier than August 25, 2014, for an increased rating must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.