Citation Nr: 21005136 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-39 537 DATE: January 29, 2021 ORDER Revision of the portion of the October 2013 rating decision, which denied reopening the Veteran’s service connection claim for skin rashes, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105 is denied. Revision of the portion of the October 2013 rating decision, which denied reopening the Veteran’s service connection claim for migraine headaches, on the basis of CUE pursuant to 38 C.F.R. § 3.105 is denied. Revision of the portion of the January 2008 rating decision, which continued a 10 percent rating for alopecia, on the basis of CUE pursuant to 38 C.F.R. § 3.105 is denied. FINDINGS OF FACT 1. The October 2013 rating decision which denied reopening the Veteran’s service connection claim for skin rashes does not contain CUE. 2. The October 2013 rating decision which denied reopening the Veteran’s service connection claim for migraines does not contain CUE. 3. The January 2008 rating decision which continued a 10 percent rating for alopecia does not contain CUE. CONCLUSIONS OF LAW 1. The October 2013 rating decision, which denied reopening the service connection claim for skin rashes, does not contain CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105, 38 C.F.R. § 3.303(b). 2. The October 2013 rating decision, which denied reopening the service connection claim for migraines, does not contain CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105, 38 C.F.R. § 3.303(b). 3. The January 2008 rating decision, which continued a single 10 percent rating for alopecia under Diagnostic Code 7831, does not contain CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105, 38 C.F.R. § 3.303(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1986 to January 1996. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2019. A transcript of the hearing is of record. The Veteran submitted a RAMP opt-in form dated April 2018. At the Veteran’s July 2019 hearing, he through his representative, indicated that he wished for his appeal to remain in the legacy appeals system. In addition, an August 2019 letter sent to the Veteran requested that he respond with a completed opt-in form if he wished to participate in the RAMP program. The Veteran was notified that he would have 60 days to complete the form and return it to the Board, otherwise his appeal would continue in the legacy system. The Board did not receive a response; therefore the appeal will be adjudicated as a legacy appeal. CUE (38 C.F.R. § 3.105) A previous regional office (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, an October 2013 rating decision declined to reopen service connection claims for migraine headaches and skin rashes. That decision also granted service connection for gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS), chronic gastritis, and hemorrhoids; and, assigned initial disability ratings for those disabilities. The appellant filed a Notice of Disagreement (NOD) in November 2013 but the NOD only indicated disagreement with the effective dates for the grants of service connection and the initial disability ratings assigned. The NOD did not list disagreement with the continued denial of service connection for migraine headaches and skin rashes, and the Veteran did not otherwise indicate that he wished to file an appeal with regard to his migraine headache or skin rash claims. Therefore, the Board finds that the Veteran did not appeal these issues and the October 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b). 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 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 adjudications had 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. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). 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. Id. 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 that 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 the 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 finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of the claims. Skin rashes and migraine headaches In October 2006, the Veteran’s service connection claims for skin rashes and migraine headaches were denied. The Veteran’s claims were denied due to a lack of competent medical evidence that the Veteran had a diagnosis for a skin rash condition or a migraine headache condition. There was also no evidence of a skin rash condition in-service and only one instance of diagnosed tension headache in December 1990. In October 2013, the RO denied reopening the Veteran’s claims because no new and material evidence had been submitted. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The record contains some evidence that was submitted after the October 2006 rating decision that is identical in content to evidence received prior to the October 2006 rating decision. In some cases, the dates have been changed to a more recent date, but the statements themselves are identical. One example includes a January 2007 statement from the Veteran’s then-fiancé. This statement is identical to a submission from April 2006 and another submission dated May 2006. This statement discusses both migraines and skin rashes but as noted above it was considered in the October 2006 rating decision and therefore does not constitute new and material evidence. In a statement dated February 2006 but received January 2007, the Veteran was noted to have complained of severe migraine headaches. The clinician noted that the Veteran was being treated by another physician to control his headaches. The clinician opined that the Veteran’s headaches were an indication that he had untreated hypertension. In an April 2010 deferred rating decision, the RO noted that the Veteran had presented numerous medical opinions from various physicians without treatment records from these physicians or other evidence supporting that the Veteran was a patient of the various physicians. In the Veteran’s July 2019 hearing testimony, he stated that his skin condition started in the Gulf. The Veteran indicated that he served in the Gulf for two years. A review of the Veteran’s DD Form 214 indicates that the Veteran had only 3 months and 19 days of foreign service. The Veteran did not dispute the information on his DD Form 214 when confronted with this fact during the hearing. The Veteran’s record does not indicate service in the Gulf other than service in Turkey. The Veteran’s file contains multiple references to skin rashes after the October 2013 rating decision. However, a determination for CUE is made based upon the evidence of record at the time of the rating decision being collaterally attacked. In this instance, no evidence submitted after the October 2013 rating decision is relevant for the purposes of CUE. The Veteran’s argument is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator. He asserts that his service connection claims for skin rashes and migraines should have been reopened in the October 2013 rating decision. 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. At the time of the October 2013 rating decision, the Veteran had not submitted new and material evidence sufficient to reopen the service connection claims for skin rashes and migraines. Therefore, the October 2013 rating decision does not contain CUE, and the claims are denied. The Board acknowledges the Veteran’s March 2014 statement suggesting that the RO failed to properly interpret and apply the Persian Gulf War presumptions to his claims. The October 2013 rating decision declined to reopen the Veteran’s claims for skin rashes and migraines because no new evidence had been submitted to support that the Veteran had a diagnosis for a skin rash or migraine condition. Upon reviewing the record, the Board agrees that no new and material evidence had been submitted that would substantiate the Veteran’s claims in the time between the October 2006 denial of service connection and the October 2013 denial for reopening. Even in the context of a Gulf War presumption the Veteran must have some identified illness. Second, application of the Gulf War presumption requires the Veteran be a “Persian Gulf Veteran.” A “Persian Gulf Veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The “Southwest Asia theater of operations” refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C. § 101(33); 38 C.F.R. § 3.3(i). As noted above, although the Veteran has discussed service in Saudi Arabia and generally discussed two years of service in the Gulf, there is no evidence to support the Veteran has two years of foreign service and there is also no evidence to support service in Saudi Arabia or any of the other locations falling within the “Southwest Asia theater of operations.” The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). In the context of evaluating the truthfulness of the Veteran’s statements, there are numerous unsigned medial opinions that were purportedly submitted by physicians who were treating the Veteran. However, the record is void of actual medical treatment records from these same physicians. These medial opinions also typically contain numerous grammatical and spelling errors which would be atypical for a physician’s medical opinion. One supposed medical opinion submitted in March 2014, calls the Veteran’s credibility into question substantially. The submitted statement is purportedly from a Dr. Kilpatrick. However, the statement contains multiple irregularities. First, the statement does not contain a handwritten signature and it is submitted on a VA Form 21-4138, statement in support of claim. It was not submitted on a DBQ form nor are the doctor’s credentials identified. There is no letterhead or signature, or any way to know what type of doctor this is. In addition, the use of the phrase “my skin rash” can be found at the end of the first sentence in the second paragraph. This statement/submission begins as if it was drafted by Dr. Kilpatrick, using the phrase “This statement is in support of veteran Kenneth P. Beamon, my name is Byron Kilpatrick M.D. I’m a board certified physician. I have performed a comprehensive review of the veterans service medical records.” Again, at the start of the fourth paragraph, the statement reads “providing a link between my rashes and my military service…” However, later in the fourth paragraph, the statement reads “So his claim for undiagnosed…” and “This may be a requirement if he…” A sentence on the second page reads “Given this evidence, [t]he veteran should have been granted service connections for my skin rashes.” The statement also includes an abnormal amount of references to VA regulations and VA caselaw which is also atypical when a statement is submitted on behalf of a Veteran in a physician’s capacity as the Veteran’s doctor. The Board finds that this evidence taken together makes this statement unreliable and substantially weakens the Veteran’s credibility overall. Alopecia rating A previous regional office (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, a January 2008 rating decision granted a rating of 10 percent for the Veteran’s alopecia, effective December 20, 2005. The Veteran did not file an NOD. Therefore, the January 2008 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. In a December 2014 statement, the Veteran argues that the January 2008 rating decision committed CUE by failing to assign separate 10 percent ratings for the Veteran’s loss of eyebrows and loss of eyelashes under Diagnostic Codes 6023 and 6024, in addition to the Veteran’s 10 percent evaluation for alopecia under Diagnostic Code 7831. The Veteran cites a Compensation Service Bulletin dated December 2013 to support his contention. A finding of CUE must be based on the evidence of record and the law at the time the decision under collateral attack was made. In this case, the December 2013 Bulletin post-dates the January 2008 rating decision being collaterally attacked. Therefore, it cannot be the basis for a finding of CUE in the January 2008 rating decision. In addition, the text quoted by the Veteran indicates that Diagnostic Codes 6023 and 6024 are intended to compensate for loss of eyebrows or eyelashes due to injury, burns, or local disease such as infections. There was no evidence in January 2008 (and there is no evidence now) that the Veteran’s eyebrows and eyelashes are missing due to injury, burns, or a local disease. The January 2008 rating decision correctly assigned a rating of 10 percent, under Diagnostic Code 7831 for the Veteran’s alopecia based primarily on a December 2007 VA examination. A 10 percent rating is the maximum available rating under Diagnostic Code 7831 and is assigned for “the loss of all body hair.” (Continued on the next page)   The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). To assign additional ratings under 6023 and 6024 would constitute pyramiding under 38 C.F.R. § 4.14. Therefore, there is no error in the January 2008 rating decision’s assignment of a single 10 percent rating under Diagnostic Code 7831 and the claim for CUE in the January 2008 rating decision is denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, Associate Attorney 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.