Citation Nr: 21075213 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-32 996 DATE: December 17, 2021 ORDER Revision on the basis of clear and unmistakable error (CUE) of a June 1971 rating decision reducing the disability rating for tuberculosis is granted to the extent that an additional 100 percent rating is warranted until June 9, 1972. All other revision is denied. FINDINGS OF FACT 1. The Veteran's disability rating for tuberculosis was reduced from 100 percent to zero percent in a June 1971 rating decision that became final because he did not submit a notice of disagreement (NOD) or new and material evidence within the appeal period. 2. The correct facts, as they were known at the time, were not before the RO in June 1971, however, the failure to consider those facts did not manifestly change the outcome of the June 1971 rating decision. 3. The statutory or regulatory provisions extant at the time of the June 1971 rating decision were not correctly applied to the extent that the rating decision reduced the 100 percent rating for tuberculosis earlier than 1 year from the date of attainment of inactivity, and the failure to correctly apply those laws and regulations manifestly changed the outcome of the June 1971 rating decision to the extent that the Veteran's 100 percent rating should not have been reduced until one-year after the date of attainment of inactivity, which is June 9, 1972. 4. The evidence of record before the RO in June 1971 did not indicate any residuals of tuberculosis beyond the "minimal" level described in a March 1971 VA examination. CONCLUSION OF LAW CUE is shown in the June 1971 rating decision to the extent it did not continue the 100 percent rating for tuberculosis for one-year after attainment of inactivity of the disease. CUE is not shown in the 0 percent evaluation following the reduction for inactivity. 38 U.S.C. §§ 5109A; 38 C.F.R. §§ 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1965 to July 1967. The case is on appeal to the Board from a June 2014 rating decision. In June 2018, the Veteran testified at a Board hearing. Additional evidence was received into the claims file subsequent to the statement of the case issued in July 2014. As the evidence is not pertinent to the issue on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). In a May 2019 decision, the Board denied the Veteran's CUE request. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court issued a Memorandum Decision vacating the Board's decision and remanding the case for readjudication in accordance with the Memorandum Decision. 1. Revision on the basis of CUE of a June 1971 rating decision reducing the disability rating for tuberculosis. The Veteran seeks a revision of the June 1971 rating decision on the basis of CUE. The June 1971 rating decision at issue reduced a 100 percent rating for service-connected tuberculosis to noncompensable based on the results of a March 1971 VA examination. According to the rating decision, that examination showed the Veteran had been treated with chemotherapy, plus para-amino salicylic (PAS), which had been discontinued in September 1970; he had continued taking isoniazid (INH); an x-ray showed minimal fibrotic area in the right apex; and the remainder of the chest examination was negative. The examiner, as summarized in the rating decision, found that the Veteran's pulmonary tuberculosis was inactive and was accorded full work tolerance. Ultimately, the RO found, in the absence of any evidence to the contrary showing activity of pulmonary tuberculosis within the last 6 months, that the condition had been inactive in excess of 6 months. The RO reduced the rating effective from October 1, 1971. At his Board hearing, the Veteran argued that there was CUE in this rating decision because tuberculosis was a defect in his lungs even though it was inactive. Board Hr'g Tr. 5. To this extent, he argued, the evaluation should have taken into consideration the other residuals from the tuberculosis. Board Hr'g Tr. 6. For example, he had had scarring and chest pain. Board Hr'g Tr. 5. He emphasized that he attended all VA examinations scheduled even though he had a limited understanding of the process and other difficulties associated with a mental health condition. Board Hr'g Tr. 6-7. He also argued that the RO should have awarded special monthly compensation (SMC) at the (q) level. Board Hr'g Tr. 4, 10. General CUE Legal Criteria A CUE motion is a collateral attack on a final RO decision. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). CUE is established when the following conditions are met. First, either (1) the correct facts in the record were not before the adjudicator, or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Finally, 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). See also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). "CUE is a very specific and rare 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...[I]f it is not absolutely clear that a different result would have ensued," based upon the facts and law that were understood at the time of the decision, then any error that may have occurred in a final RO decision is not clear and unmistakable. Evans, 27 Vet. App. at 185-86 (quoting Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993)). Finality of June 1971 Rating Decision As a threshold matter, the Board finds that the June 1971 rating decision is final. There is some question as to whether the Veteran appealed the June 1971 rating decision. Specifically, he wrote a statement to the RO in July 1972 declaring that he had visited the RO approximately four months prior and signed an NOD with the reduction of his disability compensation from 100 percent to zero percent. He wrote that he had not heard from the RO on his disagreement, but requested a statement of the case (SOC) if it was denied. In response, the RO sent the Veteran a letter in July 1972 informing him that there was "no record of a timely filed notice of disagreement," and his "time to appeal expired on June 17, 1972," so his NOD was not accepted as timely. Contrary to the Veteran's July 1972 letter, there is no indication that he filed an NOD between June 1971 and July 1972. A presumption of regularity dictates that, if an NOD had been received, the RO would have associated it with the claims file and acted on it in some manner. See Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010). There are many possible explanations for why the RO did not receive it. For example, it is possible that he went to his representative's office at the RO and signed such a statement, but the representative never submitted it. There could be other reasons the NOD was not submitted to the RO. This is all speculation on the Board's part. The determinative fact is that the there is no NOD in the file. The Veteran's July 1972 statement is not clear evidence rebutting the presumption. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir 2009). At his Board hearing, the Veteran's representative also argued that the Veteran had difficulty due to a very limited understanding of the process and "his hands were tied having PTSD and bipolar." Board Hr'g Tr.6. To the extent he is raising an equitable tolling argument, equitable tolling is not available for general negligence or procrastination. Rather, it is available when "circumstances precluded a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional office or the Board." Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (addressing filing deadlines at the CAVC). One circumstance that qualifies for tolling is when a veteran's mental or physical illness rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society. The analysis must focus on the particular infirmity of the veteran. Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005). Here, there is no indication that the Veteran had a mental illness rendering him incapable of rational thought or deliberate decision making, or that he was incapable of handling his own affairs or unable to function in society. The March 1971 VA examination alluded to his difficulty working due to psychiatric symptoms; it listed his symptoms as nervousness, poor sleeping habits, limited appetite, "etc." It did not refer to any other higher-level or more severe symptomatology for the one-year appeal period following the June 1971 rating decision. His vague assertions at the Board hearing of mental problems do not suffice to support an application of equitable tolling. Palomer v. McDonald, 27 Vet. App. 245, 253 (2015) (quoting Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004)). As such, the Board finds that equitable tolling is not warranted to find that the July 1972, although untimely filed, may be accepted as timely. The Board also considers whether new and material evidence was added to the claims file during the one-year appeal period following the June 1971 rating decision. Indeed, in November 1971, a new medical record was added to the claims file. This record consisted solely of a March 1971 negative tuberculosis culture from a gastric lavage. The question becomes whether this record is material such that it would render the June 1971 rating decision nonfinal. The Board finds that this record was merely cumulative of the records in the claims file in June 1971. Because the June 1971 rating decision had already determined that the Veteran's tuberculosis was inactive, the results of the culture showing tuberculosis was not present would not have an effect tending to prove the claim. In fact, it further strengthens the rating decision's position. Therefore, it is not material evidence. Accordingly, new and material evidence was not received within one year of the June 1971 rating decision. Consequently, the June 1971 rating decision remains final. Rating Criteria at Time of June 1971 Rating Decision In the June 1971 rating decision, the Veteran's tuberculosis was rated under Diagnostic Code (DC) 6726. As a finding of CUE is dependent on the law in effect at the time of the rating decision, Evans, 27 Vet. App. at 185-86, the Board reviews that here. In June 1971, 38 C.F.R. § 4.94, provided as follows: Ratings for Pulmonary Tuberculosis Initially Evaluated After August 19, 1968 6726 Tuberculosis, pulmonary, chronic, moderately advanced, inactive For 1 year after date of attainment of inactivity of tuberculosis 100 Thereafter, rate residuals attributable to tuberculosis: Pronounced; advanced fibrosis with severe ventilatory deficit manifested by dyspnea at rest, marked restriction of chest expansion, with pronounced impairment of bodily vigor 100 Severe; extensive fibrosis, severe dyspnea on slight exertion with corresponding ventilatory deficit confirmed by pulmonary function tests with marked impairment of health 60 Moderate; with considerable pulmonary fibrosis and moderate dyspnea on slight exertion, confirmed by pulmonary function tests 30 Definitely symptomatic with pulmonary fibrosis and moderate dyspnea on extended exertion 10 Healed lesions, minimal or no symptoms 0 A veteran shown to have had active pulmonary tuberculosis will be held to have reached a condition of "complete arrest" when a diagnosis of inactive is made. Noncavitary pulmonary tuberculosis will be considered to be inactive when bacteriologic tests have been negative on serial examinations for 6 months and serial roentgenograms have shown stable or slightly clearing or contracting lesions with no evidence of cavitation for 6 months. Cavitary pulmonary tuberculosis will be considered to be inactive when bacteriologic examinations have been negative on serial examinations for 18 months; the presence of residual cavitation is permitted and slight variations in size of the cavity are permissible. 38 C.F.R. § 4.94. For ratings for inactive nonpulmonary tuberculosis initially entitled after August 19, 1968, following the total rating for the 1 year period after date of inactivity, the schedular evaluation for residuals of nonpulmonary tuberculosis, i.e., ankylosis, surgical removal of a part, etc., will be assigned under the appropriate diagnostic code for the residual preceded by the diagnostic code for tuberculosis of the body part affected. For example, tuberculosis of the hip joint with residual ankylosis would be coded 5001-5250. Where there are existing residuals of pulmonary and nonpulmonary conditions, the evaluations for residual separate functional impairment may be combined. 38 C.F.R. § 4.88b. Where there are existing pulmonary and nonpulmonary conditions, the total rating for the 1 year, after attainment of inactivity, may not be applied to both conditions during the same period. However, the total rating during the 1-year period for the pulmonary or for the nonpulmonary condition will be utilized, combined with evaluation for residuals of the condition not covered by the 1-year total evaluation, so as to allow any additional benefit provided during such period. 38 C.F.R. § 4.88b. (The rating schedule set forth different criteria for evaluating tuberculosis where service connection was in effect on August 19, 1968. The Veteran's service-connected tuberculosis here was in effect from September 1968. Thus, the earlier rating criteria did not apply to his disability.) Analysis The Veteran's primary contention is that he had other residuals of tuberculosis, which should have prevented the RO from reducing his rating to noncompensable. The evidence of record at that time of the June 1971 rating decision included the Veteran's service treatment records (STRs), plus VA medical records from 1968. That evidence pertained to his disability level prior to the period at issue before the RO. It was relevant to the extent it informed the VA examiner and the RO as to the state of his condition leading up to the appeal period. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (a veteran's disability must be evaluated in light of its whole recorded history). The evidence of record also consisted of the March 1971 VA examination. That examination summarized the Veteran's medical history, including treatment with chemotherapy and PAS discontinued in September 1970, but still taking INH. The examiner noted that the Veteran was presently not working, but his symptomsnervousness, poor sleeping habits, poor appetite, "etc."were not related to his chest. He had no dyspnea at rest, no cyanosis, and no clubbing of fingers. The examiner noted an x-ray showing minimal fibrotic area in right apex, with no change from the prior film. Chest examination revealed no abnormality. The examiner's assessment was tuberculosis, pulmonary, chronic minimal, inactive, on chemotherapy, full work tolerance, but avoid arduous physical activities, prefer sedentary or light mechanical work. This examination did not identify chest pain or any other symptom(s) associated with tuberculosis. The mental health symptoms identified were expressly disassociated with tuberculosis. The Veteran's current testimony indicating additional symptoms was not before the RO. This evidence is not permitted to be considered in CUE cases because it was not in existence at the time of the June 1971 rating decision. The rating schedule in June 1971 provided a 100 percent evaluation for one year after date of attainment of inactivity of tuberculosis. The Board finds there is clear and unmistakable error in the June 1971 rating decision because it did not apply this one-year provision. The rating decision concluded that the Veteran's pulmonary TB had been inactive in excess of six months, or roughly January 1, 1971. Therefore, at the earliest, the Veteran would be entitled to a 100 percent rating until January 1972. Instead, the 100 percent rating was discontinued September 30, 1971. Thus, the failure to apply the one-year provision was error. Having found error, the Board evaluates what date for the reduction is compelled by the evidence. As stated above, the earliest date to reduce the 100 percent rating would be January 1972. Nonetheless, the regulations state that noncavitary pulmonary tuberculosis will be considered to be inactive when bacteriologic tests have been negative on serial examinations for 6 months and serial roentgenograms have shown stable or slightly clearing or contracting lesions with no evidence of cavitation for 6 months. 38 C.F.R. § 4.97 (1971). The June 1971 rating decision concluded that pulmonary tuberculosis had been inactive in excess of 6 months. As will be further explained below, the Board does not find error in this conclusion. Applying this finding to the provision that 6 months of negative bacteriological tests and roentgenograms (x-rays) will allow for a finding of inactivity, the actual date of attainment of inactivity that commences the one-year 100 percent rating period is the date of the June 1971 rating decision. Accordingly, the June 1971 rating decision is revised to allow for a 100 percent rating until June 9, 1972. As to potential error in that bacteriological tests were not of record at the time of the June 1971 rating decision, even if there was error, the Board finds it does not manifestly change the outcome. The evidence of record reviewed by the June 1971 rating panel, which included a medical member, determined the Veteran's tuberculosis was inactive for six months. 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 a medical member). The rating Board had before it, at the very least, the March 1971 VA examination report. The March 1971 VA examiner diagnosed the Veteran with inactive tuberculosis based upon a March 1971 X-ray and the history of a January 1971 X-ray. Thus, there is sufficient evidence for the rating Board to have drawn the conclusion of inactivity. Although it may not have been precisely compliant with regulations, medically, it was factually correct. It would be speculation to say that, had the bacteriological tests or more x-rays had been done, the Veteran would be found to have active tuberculosis after January 1971. Thus, it cannot be said that, had the error in applying the regulations not occurred, the tuberculosis would not have attained inactivity for six months as of June 1971. Therefore, the outcome would not be manifestly different. Furthermore, the regulations state a veteran shown to have had active pulmonary tuberculosis will be held to have reached a condition of "complete arrest" when a diagnosis of inactive is made. 38 C.F.R. § 4.97 (1971). According to this provision, the diagnosis itself in March 1971 of inactive tuberculosis could possibly trigger the attainment of inactivity. The Board acknowledges that the VA examiner reported not having the claims folder or the treatment folder. Nonetheless, the rating board had the records. Again, the rating board had a medical member, and it was entitled to rely on the judgement of that medical member. Accordingly, there is no CUE, or anything that would otherwise manifestly change the result. Next, the Board considers whether there was clear and unmistakable error in the zero percent rating assigned after the reduction from 100 percent. Under DC 6726, a 10 percent rating for definitely symptomatic with pulmonary fibrosis and moderate dyspnea on extended exertion, but the March 1971 VA examination expressly found the condition to be inactive at a "minimal" level. Absent evidence of record at that time indicating additional symptoms, it cannot be found that the correct facts were not before the RO or that the law was misapplied where the RO did not assign a higher rating based on residuals of tuberculosis. To the extent the Veteran disagrees with the RO's interpretation of this March 1971 examination, the June 1971 rating panel medical member was able to assess the severity of the condition. See Macklem v. Shinseki, 24 Vet. App. 63, 70 (2010) (VA rating boards previously included physicians). With this in mind, the Veteran's argument is essentially a disagreement as to how the facts were weighed and evaluated by the panel. It is the prerogative of the factfinder to interpret the evidence and draw reasonable inferences from it. See 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. Accordingly, here, reasonable minds could differ on the weighing of the evidence at the time of the June 1971 rating decision, but this cannot constitute CUE. See Evans, 27 Vet. App. at 185, 187. Where reasonable minds can differ, CUE is not present. At his Board hearing, the Veteran also argued that he attended all VA examinations. This was not a basis for the RO's decision in June 1971. His absence at any earlier VA examinations had no bearing on the outcome of the rating decision in June 1971. Even if it had, the Veteran's contention amounts to a theory of a duty to assist violation. This cannot form the basis of CUE. See Evans, 27 Vet. App. at 195 (citing Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002)). As such, this argument does not support a finding of CUE. The Veteran also raised an argument concerning the assignment of SMC at the (q) level. The Veteran's contention is essentially that it was error for the rating decision to not assign this benefit. That issue was not decided in the June 1971 rating decision. The claims file shows that the issue of entitlement to SMC at the (q) level was denied by a subsequent Board decision in February 2003. That Board decision specifically addressed whether SMC (q) was warranted beginning from September 1968, which is when service connection went into effect for the Veteran's disability. That issue was not on appeal from the June 1971 rating decision. Hence, the Board decision subsumed the issue in its entirety. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). Any challenge to the Board's February 2003 decision based on CUE is outside the scope of the instant matter. To the extent the Veteran feels there was CUE in that Board decision, he is encouraged to file a CUE motion setting forth his specific and exhaustive contentions so that the matter may be appropriately addressed. In sum, there was CUE in the application of the one-year 100 percent evaluation after the date of attainment of inactivity and a revision of the rating decision is warranted. Otherwise, the Board finds that the correct facts, as they were known at the time, were before the adjudicators in June 1971, or any error related thereto would not manifestly change the outcome. The statutory and regulatory provisions extant at the time were correctly applied as to the evaluation of the Veteran's tuberculosis after the reduction from 100 percent. The Veteran is ultimately disagreeing with the judgment of the adjudicators deciding the claim at that time, which is not CUE. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.