Citation Nr: 21015270 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-26 563 DATE: March 17, 2021 ORDER Entitlement to an earlier effective date of December 22, 1987 for a 100 percent rating for HIV-related illness on the basis of clear and unmistakable error (CUE) in a 1994 rating decision is granted. Entitlement to an increased rating of 60 percent and earlier effective date of December 22, 1987 for Meniere's disease on the basis of CUE is dismissed. Entitlement to an effective date of December 22, 1987 for special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) (housebound status) is granted. FINDINGS OF FACT 1. In an April 1994 rating decision, a 60 percent disability rating was assigned for the Veteran’s HIV-related illness effective December 22, 1987. The decision became final. 2. The regulatory provisions were not correctly applied in the April 1994 decision, and the failure to correctly apply the regulations manifestly changed the outcome of that decision. 3. In a September 2020 rating decision, the Veteran’s claim for entitlement to a 60 percent rating for Meniere’s disease effective December 22, 1987 was granted. 4. The Veteran was rated as 100 percent disabling for an HIV-related illness and additionally rated at 60 percent disabling for Meniere’s disease, which is separate and distinct from his HIV-related illness and involves different bodily systems. CONCLUSIONS OF LAW 1. The April 1994 rating decision that assigned a 60 percent disability rating for the Veteran’s HIV-related illness as of December 22, 1987 was clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The criteria for dismissal of entitlement to an increased rating and earlier effective date for Meniere's disease on the basis of CUE have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to an effective date of December 22, 1987 for SMC based on housebound status have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.351(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to December 1987. These matters are on appeal to the Board of Veterans’ Appeals (Board) from a May 2015 rating decision. A hearing was held regarding these issues in June 2009; the Acting Veterans Law Judge is no longer at the Board. The Veteran’s claim regarding the rating and effective date of his service-connected Meniere’s disease was granted in a September 2020 rating decision. As his claim was granted in full, it is no longer on appeal and the Board has no jurisdiction over the claim. Thus, the claim is dismissed. Of note, previous correspondence from VA to the Veteran has listed his representative as the National Association for Black Veterans. There is a VA Form 21-22 of record in April 2011 appointing this organization as his representative; however, in May 2014 correspondence, the Veteran clearly stated that any and all previous VA Forms 21-22 should be considered null and void as of the date of correspondence, and that he would be representing himself until further notice. As the Board has not received another VA Form 21-22 to date, it assumes the Veteran has remained unrepresented. 1. Entitlement to an earlier effective date of December 22, 1987 for a 100 percent rating for HIV-related illness on the basis of CUE in a 1994 rating decision This claim has a lengthy procedural history. The Veteran has been pursuing his claim intermittently, but consistently, since his medical discharge in December 1987. Following his medical discharge, the Veteran was service connected for HIV infection with lymphadenopathy evaluated at 10 percent effective December 22, 1987, the date following discharge. He timely appealed that decision and a Statement of the Case (SOC) was issued in June 1990. He filed a VA Form 9 in August 1990. A January 1991 rating decision confirmed the rating but no Supplemental Statement of the Case (SSOC) was issued. In March 1993, the Veteran submitted additional medical evidence, and his claim was increased to 60 percent effective January 4, 1993, the date of the Veteran’s Army physical evaluation board (PEB) proceedings. The decision stated that an earlier effective date would be considered following receipt of test results. In a March 1994 Administrative Review by the Director of Compensation and Pension Service, it was determined that the June 1993 decision committed CUE by failing to assign a 60 percent evaluation for the Veteran’s HIV effective December 22, 1987. The evidence indicated the Veteran had experienced several episodes of opportunistic infections, including candida esophagus, esophageal dysmotility, and experienced psychiatric difficulties as a result of his illness. The Director determined that the original rating decision of January 1991 was pending at the time of the June 1993 decision, and as there was no clear demarcation point at which the disability increased in severity, the correct effective date should have been December 22, 1987. This review was promulgated in an April 1994 rating decision and the decision became final. The Veteran filed an increased rating claim in March 2004; a November 2004 rating decision denied the claim and continued the 60 percent rating. A December 2008 rating decision increased his HIV rating to 100 percent effective March 24, 2008. A December 2009 Board decision found the Veteran was entitled to a 100 percent rating prior to March 24, 2008. A January 2010 rating decision promulgating that decision assigned a 60 percent rating from December 22, 1987 and a 100 percent rating as of March 8, 2004. The Veteran continued to pursue a 100 percent rating retroactive to December 22, 1987, to include on the basis of CUE in the 1994 decision. In January 2011 and August 2012 Board decisions, the Board referred the issue back to the RO for adjudication as the Board did not have jurisdiction over the claim. A July 2014 rating decision found that no revision was warranted based on CUE for the Veteran’s earlier effective date for HIV and SMC claims. Another rating decision was issued in May 2015, subsuming the July 2014 decision, that reached the same conclusions. The Board remanded the claims in February 2019, finding that the RO merely considered whether CUE was present in January 1991 and March 2004 rating decisions, despite the Veteran’s assertions of CUE in other decisions – April 1989 (Meniere’s disease), March 1994 (HIV-related illness), and January 2010 (SMC at the housebound rate). Thus, the claims were remanded for additional review by the RO. In a September 2020 rating decision, the RO found there was CUE in the 1994 decision as evidence available at the time of the decision clearly established that the Veteran’s HIV was debilitating and prevented him from working with the energy and strength needed to complete occupational tasks, as well as resulting from frequent absences from work. It also demonstrated the presence of recurrent opportunistic infections and secondary diseases affecting multiple body systems, to include migraine headaches (neurological system), lymphadenopathy (lymphatic system), esophageal dysmotility (digestive system), and a mental health disability. Thus, the RO concluded that the Veteran’s symptoms most closely approximated a 100 percent evaluation under Diagnostic Code 6351, and this would be clear to any reasonable mind. To correct the error, the RO assigned a 100 percent evaluation from March 24, 1992, the effective date of revisions to Diagnostic Code 6351. As the decision did not constitute a full grant of benefits back to December 22, 1987, the claim remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In the November 2020 SSOC, the RO explained there was also CUE in the 1994 decision by assigning the Veteran’s rating using the new revisions of Diagnostic Code 6351 prior to the date it became effective on March 24, 1992. Prior to March 24, 1992, the RO should have been rated analogous to the criteria for the affected body system(s) pursuant to 38 C.F.R. § 4.88(b), Diagnostic Code 6351. Thus, while finding that CUE was committed in the decision, the RO concluded that the evidence fails to establish that a higher evaluation would have been warranted if separate analogous evaluations were assigned for the period in question (December 22, 1987 to March 23, 1992). A previous 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). 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 CUE analysis is based on the record before the RO and the law as it was at the time of the decision being challenged. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). 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 his claims. During the pendency of the appeal period at issue, multiple revisions were made to the Schedule for Rating Disabilities for HIV-related disorders. Effective March 24, 1992, the criteria for adjudicating HIV-related disorders was revised. See 57 Fed. Reg. 10134-36 (March 24, 1992) (codified at 38 C.F.R. § 4.88b, Diagnostic Code 6351). Prior to March 24, l992, VA used three diagnostic codes for rating HIV-related illness: 38 C.F.R. § 4.88a, Diagnostic Code 6351 for acquired immunodeficiency syndrome (AIDS); 38 C.F.R. § 4.88a, Diagnostic Code 6352 for AIDS Related Complex (ARC); and 38 C.F.R. § 4.88a, Diagnostic Code 6353 for HIV seropositivity, effective March 1, 1989. Where a veteran was HIV seropositive, i.e., his or her body had produced antibodies as to the human immunodeficiency virus (HIV) as identified through laboratory testing only, without underlying disease, a noncompensable rating was assigned under Diagnostic Code 6353. Diagnostic Codes 6351 and 6352 were rated according to the severity of the “underlying diseases”, i.e., the constitutional or neurologic disease, opportunistic infection, etc., associated with HIV-related illnesses. As for any other disorder for which separate diagnostic criteria were not provided, HIV-related illness was rated by analogy under 38 C.F.R. § 4.20. Subsequently, the VA undertook to revise the provisions available for rating disabilities due to HIV-related illnesses. The VA proposed to rate HIV-related illnesses under a single Diagnostic Code 6351, and 38 C.F.R. § 4.88a (1993) was amended accordingly to remove Codes 6352 and 6353. While the diagnostic criteria were indeed amended during the pendency of the Veteran’s appeal, the Board need not consider his disability rating under the pre-1992 criteria; the RO did not err in using the March 1992 revised criteria because it was in accordance with existing law at the time. In Karnas v. Derwinski, the Court of Appeals for Veterans Claims (Court) held that where a regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the “version most favorable to appellant” applies. 1 Vet. App. 308, 313 (1991). The case was subsequently overruled in that regard in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); however, a CUE analysis must consider the law existing at the time of the decision at issue, and the 1994 RO did not err in considering both versions of the revisions in rating the Veteran. Under the revised Diagnostic Code 6351, a noncompensable rating is warranted for HIV-related illness that is asymptomatic, following initial diagnosis of HIV infection, with or without lymphadenopathy or decreased T4 cell count. A 10 percent rating is warranted following development of definite medical symptoms, T4 cell of 200 or more and less than 500 and on approved medications, or with evidence of depression or memory loss with employment limitations. A 30 percent rating is warranted with recurrent constitutional symptoms, intermittent diarrhea and on approved medications, or with T4 cell count less than 200, Hairy Cell Leukoplakia, or Oral Candidiasis. A 60 percent rating is warranted for refractory constitutional symptoms, diarrhea and pathological weight loss, or development of AIDS-related opportunistic infection or neoplasm. A 100 percent rating is warranted for AIDS with recurrent opportunistic infections or with secondary diseases afflicting multiple body systems, HIV-related illness with debility and progressive weight loss without remission or with few or brief remissions. Note 1 provides that the term “approved medications” includes medications prescribed as part of a research protocol at an accredited medical institution. Note 2 provides that psychiatric or central nervous system manifestations, opportunistic infections, and neoplasms may be rated separately under appropriate codes if higher overall evaluation results, but not in combination with percentages otherwise assignable under Diagnostic Code 6351. 38 C.F.R. § 4.88(b). Since service, the evidence documents secondary diagnoses of migraine headaches and lymphadenopathy. October 1992 letters from Dr. P and Dr. W detail the Veteran’s poor prognosis in the setting of his esophageal disabilities (classified as opportunistic infections) and his T4 cell deficiency. An October 1992 psychiatric evaluation revealed significant mental distress upon learning of his HIV diagnosis, and he was diagnosed with dysthymia secondary to HIV infection, as well as an anxiety disorder. In a December 1992 medical record from Walter Reed Army Medical Center, Dr. S explained that the Veteran’s disability picture had worsened since his June 1990 examination and additional evaluation for esophageal disabilities revealed presbyesophagus, marked dysmotility, and candida esophagitis. Dr. S opined that the Veteran continued to have immunodeficiency, now with new opportunistic infection. He was evaluated to be at a Stage 6 as opposed to his Stage 2 upon discharge. His listed diagnoses included HIV Stage 6 by virtue of candida esophagitis, esophageal dysmotility with presbyesophagus, and reactive depression with anxiety disorder. In January 1993 Army PEB proceedings, the Veteran was recommended a 100 percent disability rating pursuant to Diagnostic Code 6351 for Stage 6 HIV disease with candida esophagitis and esophageal dysmotility with presbyesophagus. The evidence is clear and unmistakable that at the time of the April 1994 decision, the Veteran’s HIV manifested in recurrent opportunistic infections and secondary diseases afflicting multiple body systems, putting his disability picture squarely within the 100 percent rating criteria. Here, the regulatory provisions in existence at the time were incorrectly applied as the evidence clearly showed the Veteran met the diagnostic criteria for a 100 percent rating as of December 22, 1987. This error manifestly changed the outcome; if the evidence of record at the time had been properly considered and applied to the regulations, the Veteran would have been granted a 100 percent disability rating for his HIV as of December 22, 1987, the beginning of the appeal period. To correct the error, the Veteran is entitled to a 100 percent rating for his HIV-related illnesses as of December 22, 1987. 2. Entitlement to an effective date of December 22, 1987 for SMC pursuant to 1114 (s) The Veteran was granted SMC at the housebound rate in a January 2010 rating decision effective October 24, 2008, the date he became service-connected for hepatitis C and his additional service-connected disabilities (separate and distinct from his HIV-related illnesses) were independently rated at 60 percent or more disabling. In the September 2020 rating decision, a new effective date of March 24, 1992 was awarded as that was the effective date assigned for the 100 percent rating for HIV. Under 38 U.S.C. § 1114(s), SMC based on housebound status is payable where a veteran has a single service-connected disability rated as 100 percent disabling and either additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems or is otherwise “permanently housebound” by reason of such disability or disabilities. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). It is the Veteran’s contention that he became entitled to SMC at the time of discharge. In light of the above findings, the Veteran met the statutory requirements for SMC based on housebound status as of December 22, 1987 as he has a single service-connected disability rated as 100 percent disabling (HIV-related illness) and an additional service-connected disability rated at 60 percent (Meniere’s disease) that is separate and distinct from his HIV-related illness and involving different bodily systems. Thus, while there is no CUE in the January 2010 decision as it was correctly based on the Veteran’s disability ratings at that time, the Board finds that an earlier effective date is warranted in light of the CUE in the 1994 decision, and SMC at the housebound rate is granted as of December 22, 1987. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, Associate 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.