Citation Nr: A21017342 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 200402-80197 DATE: October 27, 2021 ORDER Entitlement to revision of an August 20, 2008, rating decision that confirmed and continued a 10 percent rating for narcolepsy, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is denied. FINDINGS OF FACT 1. The August 20, 2008, rating decision that confirmed and continued a 10 percent rating for narcolepsy became final because the Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. 2. The agency of original jurisdiction (AOJ) considered the facts shown in the evidence of record and applied the correct law at the time of the August 20, 2008, rating decision, and there is no error that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different. 3. The Veteran has not alleged an error of fact or law in the August 20, 2008, rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. CONCLUSION OF LAW The August 20, 2008, rating decision that confirmed and continued a 10 percent rating for narcolepsy was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1984 to June 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision by the AOJ of the United States Department of Veterans Affairs (VA). In his April 2020 Notice of Disagreement, the Veteran elected an appeal to the Board, using the Board hearing lane. 38 C.F.R. § 20.202. The Veteran testified at an April 29, 2021, videoconference hearing before the undersigned Veterans Law Judge (VLJ) at the Atlanta, Georgia AOJ. A hearing transcript is associated with the claims file. At the April 2021 Board hearing, the Veteran waived the 90-day evidence period under the Appeals Modernization Act (AMA). See generally 38 C.F.R. §§ 20.300(b), 20.302. CUE The Veteran asserts CUE in an August 20, 2008, rating decision that confirmed and continued a 10 percent rating for narcolepsy. The Veteran contends that the AOJ did not consider his VA treatment records in the continuance of the assigned rating. He asserts that the AOJ premised its decision solely upon the July 2008 VA examination, which itself, was based upon findings that contradicted the evidence of record at the time of the rating decision. The Veteran contends that VA records showed that he averaged at least one major seizure per month such that a 100 percent rating was warranted. A previous AOJ 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). An August 20, 2008, rating decision confirmed and continued a 10 percent rating for narcolepsy. The Veteran did not file a timely Notice of Disagreement challenging this determination within one year of the decision. Thus, the August 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. 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. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine, or failed to give reasons and bases, can never rise to the stringent definition of CUE. Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). At the time of the August 2008 rating decision, the Veteran's narcolepsy was rated under Diagnostic Code 8999-8911, which indicates that narcolepsy was rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization and symptomatology are closely analogous); 38 C.F.R. § 4.27 (unlisted disabilities rated by analogy are assigned a four digit diagnostic code with the first two numbers selected from the part of the rating schedule that most closely identifies the part or system of the body involved and then the last two digits of "99"); see also 38 C.F.R. § 4.27 (stating "if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen"). The current criteria under 38 C.F.R. § 4.124a , Diagnostic Code 8911, remains the same in substance at all times since the time of the August 2008 rating decision. Epilepsy, petit mal is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8911, which directs that it be rated under the General Rating Formula for Minor Epileptic Seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Note (1) explains that a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. Note (2) to the Diagnostic Code directs that a minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Codes 8910, 8911, Note (2). To warrant a rating for epilepsy, or in this case narcolepsy, the seizures must be witnessed or verified at some time by a physician. As to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. Furthermore, the frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized). 38 C.F.R. § 4.121. As for minor seizures, the General Rating Formula for Major and Minor Epileptic Seizures provides that a 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures; a 20 percent rating is warranted for at least two minor seizures in the past six months; a 40 percent rating is warranted for minor seizures averaging at least five to eight weekly; a 60 percent rating is warranted for nine to ten minor seizures per week; and an 80 percent rating, the maximum for minor seizures, for more than 10 minor seizures weekly. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Note (1) to the General Rating Formula states that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. 38 C.F.R. § 4.124a, General Rating Formula for Major and Minor Epileptic Seizures, Note (1). Prior to his separation from active service, the Veteran submitted a claim of service connection for narcolepsy in an Application for Compensation (VA 21-526) which was received by the AOJ on May 25, 2007. The AOJ, in a July 2007 rating decision, awarded service connection for narcolepsy, with an initial rating of 10 percent, effective July 1, 2007 (the day following separation from active service). The Board notes that in an October 2007 Statement in Support of Claim (VA 21-4138), the Veteran expressed disagreement with the combined rating for his service-connected disabilities. In October 2007, the AOJ advised the Veteran that it could not accept the correspondence as a Notice of Disagreement and asked the Veteran to clarify which specific issues he intended to appeal. The Veteran did not respond to the AOJ's request, but filed an increased rating claim in January 2008. A determination by the AOJ that a Notice of Disagreement is not adequate is a decision that is appealable to the Board. 38 C.F.R. § 20.101(c) (2007); 38 C.F.R. § 20.104(d)(1) (2019). The record reflects that the Veteran did not contest the adequacy of the October 2007 Statement in Support of Claim. Therefore, the July 2007 rating decision that assigned an initial 10 percent rating in the award of service connection for narcolepsy is final. VA outpatient treatment records dated October 2007 reflect that the Veteran presented to establish care. The Veteran reported an in-service diagnosis of narcolepsy in the late 1990s, a refusal of medication to avoid early retirement, and a "couple of" motor vehicle accidents in the past. The Veteran denied neurological symptoms of headaches, vertigo, numbness, or extremity weakness. A neurological examination was assessed as normal. Treatment notes indicate that the Veteran was referred to a sleep clinic for an evaluation. Subsequent records dated November 2007 indicated that the Veteran endorsed a narcolepsy episode two months prior. He further reported fatigue, falling asleep while on duty, sleep paralysis, hypnagogic or hypnopompic hallucinations, and cataplexy. The Veteran denied mental lapses and hypersomnia. Treatment notes from this date reflect that the Veteran was prescribed Modafinil for narcolepsy and fluoxetine for cataplexy episodes. In subsequent records dated January 2008, the Veteran reported that he felt much better since October for at least four hours on the prescribed Modafinil, noted that he started to work night shifts, and denied side effects or insomnia symptoms. The examining VA clinician referenced the Veteran's "rare" cataplectic episodes since October 2007 and that it was possibly triggered by laughter. The evidence of record reflects that the Veteran was afforded a VA examination in July 2008. The examination report referenced the Veteran's diagnosis of narcolepsy. The Veteran described a typical attack as sleeping during the daytime, and could be caused by itself, stress, food, or hard work. He noted that it was alleviated by his prescribed Modafinil. The Veteran reported that over the last two years, he had 500 attacks in total, averaging 30 each month but noted that he did not keep an attack diary. He stated that he had three car accidents in 1996 and one in 2007 from falling asleep while driving. The Veteran also endorsed headache pain due to narcolepsy. A neurological examination was reportedly normal, and the VA examiner assessed the Veteran with narcolepsy, but indicated that he did not have a seizure disorder. In an August 2008 rating decision, the AOJ continued the Veteran's assigned 10 percent rating for narcolepsy. The AOJ referenced the July 2008 VA examination report's diagnosis of a narcolepsy disorder. It further noted the examination report's description of a typical attack as sleeping during the daytime, that it was evoked by itself, stress, food, or hard work, and that it was alleviated with prescribed Modafinil. The rating decision also noted the Veteran's headache symptoms reported to the VA examiner, which lasted an hour once per day due to narcolepsy. The AOJ determined that a 10 percent rating was warranted due to a confirmed diagnosis of epilepsy with a history of seizures, and that continuous medication was necessary for the control of epilepsy. The AOJ further stated that an increased 20 percent rating was not warranted unless the evidence demonstrated at least one major seizure in the last two years, or at least two minor seizures in the last six months. The Veteran's arguments are essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator in the August 2008 rating decision. 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, 185, 187 (2014). While VA outpatient treatment notes of record at the time of the August 2008 rating decision reflect treatment for and diagnoses of narcolepsy and cataplectic episodes, the record did not document a diagnosis of major seizures. Of note, the July 2008 VA examiner indicated that the Veteran did not have a seizure disorder. Under the General Rating Formula, a 100 percent rating is warranted for averaging at least one major seizure per month over the last year. 38 C.F.R. § 4.124a. Ratings of less than 100 percent are warranted for minor seizures, which are rated under the General Rating Formula based on their frequency. Id. Thus, a 100 percent rating is not available under the General Rating Formula for only minor seizures. While the Veteran has asserted a belief at the April 2021 Board hearing that the cataplectic episodes noted in VA records constituted a major, or grand mal seizure, he is a lay person, and not competent to offer a diagnosis in this matter. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). To the extent that the Veteran is now in receipt of a 100 percent rating for narcolepsy, pursuant to Diagnostic Code 8108-8911, 38 C.F.R. § 4.121, a determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The Board notes that the award of a 100 percent rating for narcolepsy was predicated upon a December 2017 VA examination report that indicated the Veteran had major seizures. Therefore, evidence that was not of record at the time of the [date] rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). In summary, there is nothing in the record to support that the AOJ did not apply the appropriate law or did not have the correct facts before it at the time of its August 2008 rating decision and, therefore, the Veteran's motion for revision of that decision must be denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.