Citation Nr: 21020949 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-58 104 DATE: April 13, 2021 ORDER The August 18, 2020 Board of Veterans’ Appeals (Board) decision denying restoration of a 60 percent disability rating for service-connected pleural plaques, is vacated. As the agency of original jurisdiction’s (AOJ’s) assignment of an initial 60 percent disability rating for service-connected pleural plaques was based on a clear an unmistakable error (CUE), the reduction of such rating to zero percent effective June 1, 2017, was proper, and restoration of the initial 60 percent disability rating as of such date is denied. FINDINGS OF FACT 1. The August 18, 2020 Board decision denying restoration of the 60 percent disability rating for service-connected pleural plaques was issued after the Appellant’s attorney submitted new evidence to the Board but prior to the evidence being associated with the electronic claims file. 2. There was clear and unmistakable error (CUE) in the September 2013 rating decision assigning a 60 percent disability rating for service-connected pleural plaques. CONCLUSIONS OF LAW 1. The criteria for vacatur of the August 18, 2020 Board decision denying restoration of a 60 percent disability rating for service-connected pleural plaques have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. A September 2013 rating decision assigning a 60 percent disability rating for service-connected pleural plaques contained CUE and the 60 percent evaluation is not restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.97, Diagnostic Code 6833. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1972. Regrettably, the Veteran passed away in February 2019 during the pendency of this appeal. His wife, the Appellant, has been substituted as the claimant for accrued benefits purposes. See July 2019 Appeal Substitution Review. The Board observes that the Appellant’s attorney has filed a series of requests for copies of the Veteran’s claims file. This request was fulfilled on September 26, 2019. A letter dated September 26, 2019 indicated that a complete copy of the claims file had been sent, with appeal rights. The letter was not returned to VA as undeliverable. An October 2, 2019 Report of General Information documented the Appellant’s request to discontinue her requests for copies of the claims file and to assign her case to a Veterans Law Judge for review. Later that month, the Appellant’s attorney submitted what was characterized as a “fifth” request for a copy of the claims file, and subsequent requests were sent in through January 2020, all in what appear to be form letters, and attached to a re-submitted copies of a March 2019 VA Form 21-22a establishing the power of attorney relationship. In March 2020, the Board sent a letter to the Appellant and her attorney asking if she wished to waive initial agency of original jurisdiction (AOJ) review of evidence added to the file, to include VA treatment records and a medical opinion, and she specifically responded that she did waive such review, suggesting she and her attorney have access to review such records. The Appellant’s attorney has not sent in a request for the file again since January 2020, but has submitted other communications to include expressing an intent to submit additional evidence in March 2020. Given the September 2019 fulfillment of the request for the file, the Appellant’s October 2019 desire to discontinue further requests for the file, what appear to be subsequent re-requests without acknowledgment of the September 2019 fulfilment, and the Appellant’s subsequent waiver of AOJ review of newly-added evidence, the Board finds that there are no requests for the claims file outstanding, and the Board will proceed with adjudication. The Board adds that it has reviewed the Appellant’s recent motion for advancement on the docket based on severe financial hardship, and the Board grants that motion. ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. Following the issuance of the August 18, 2020 Board decision denying restoration of a 60 percent disability rating for service-connected pleural plaques, the Appellant’s attorney filed a motion to reconsider the Board decision on September 4, 2020. In this motion, the Appellant’s attorney argued that prior to the August 18, 2020 Board decision, he mailed and faxed correspondence dated August 7, 2020 (and received by the United States Department of Veterans Affairs (VA) on the same day) that contained a new private medical opinion that was relevant to the issue on appeal. Review of the electronic claims file and VA’s internal records indicates that the Appellant’s attorney’s August 7, 2020 correspondence had not been associated with the Veteran’s electronic claims file at the time the August 18, 2020 Board decision was rendered; however, the mail was nevertheless in the possession of VA. Accordingly, the Appellant was denied due process of law, and the Board finds that the appropriate means to correct this due process violation is to vacate the August 18, 2020 Board decision denying restoration of a 60 percent disability rating for service-connected pleural plaques. The Board will readjudicate the appeal immediately below based on a complete review of the record, to include the newly received evidence. CLEAR AND UNMISTAKEABLE ERROR (CUE) Reduction of disability rating for service-connected pleural plaques In a September 2013 rating decision, the Veteran was awarded entitlement to service connection for pleural plaques and assigned a 60 percent disability rating, effective May 2013. In May 2015, the Veteran filed an increased rating claim for his service-connected pleural plaques. However, in an October 2015 rating decision, the AOJ found that CUE occurred in the September 2013 initial evaluation of the Veteran’s service-connected pleural plaques and proposed that the disability rating be decreased to noncompensable (zero percent). In a February 2017 rating decision, the Veteran’s disability evaluation for pleural plaques was reduced to noncompensable, effective May 1, 2017. However, in a May 2017 rating decision, the AOJ corrected the effective date for the reduction to June 1, 2017. Prior to his death, the Veteran disagreed with the reduction of the rating from 60 percent to noncompensable for his service-connected pleural plaques. However, the Board finds that such reduction was proper as CUE existed in the September 2013 rating decision. See 38 C.F.R. § 3.105(a). 38 C.F.R. § 3.105(a) states decisions are final when the underlying claim is finally adjudicated. Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a)(1)(i) defines clear and unmistakable error. A clear and unmistakable error 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. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied. In order to revise a final VA decision based on CUE (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at that 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the duty to assist set forth in 38 C.F.R. § 3.159 does not apply to requests for revision based on CUE. 38 C.F.R. § 3.105(a)(1)(iii). Review for clear and unmistakable error in a prior final decision of an agency of original jurisdiction must be based on the evidentiary record and the law that existed when that decision was made. 38 C.F.R. § 3.105(a)(1)(iii). Initially, the Board finds that the Veteran received proper notification of the reduction based on a finding of CUE in the September 2013 rating decision. In an October 2015 rating decision, the Veteran was notified of the proposal. The rating decision set forth all of the material facts and reasons for the proposed reduction. Further, a February 2017 rating decision notified the Veteran that rating reduction would be effective, May 1, 2017, the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expired. However, in a May 2017 rating decision, the AOJ corrected the effective date for the reduction to June 1, 2017, as the February 2017 rating decision was not mailed to the Veteran until March 2017. Moving to the merits, the Veteran’s service-connected pleural plaques are rated under Diagnostic Code 6833 for asbestosis. Diagnostic Code 6833 provides that a 10 percent disability rating will be awarded where Pulmonary Function Tests (PFTs) show Forced Vital Capacity (FVC) of 75- to 80-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted. A 30 percent disability rating is warranted when PFTs show FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. A 60 percent disability rating is warranted when PFTs show FVC of 50- to 64-percent predicted, or; DLCO of 40- to 55-percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent disability rating is warranted when PFTs show FVC less than 50-percent predicted, or; DLCO less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. At the time of the September 2013 rating decision, the evidence of record contained VA treatment records, lay statements from the Veteran and a friend, S.M, and a September 2013 VA examination report. VA treatment records indicated that the Veteran had comorbid respiratory disabilities—namely, moderate chronic obstructive pulmonary disease (COPD), moderate to severe bullous emphysema, and pleural plaques that were deemed likely due to past asbestos exposure. See October 2011 VA Pulmonary Consult; March 2012 VA Addendum. The Veteran did not have asbestosis. See October 2011 VA Pulmonary Consult. The Veteran underwent a VA examination in September 2013. The Veteran reported working as a boiler technician in the United States Navy for about three years. Following discharge, the Veteran worked in construction as a carpenter and denied any asbestos exposure in civilian life. He reported that he was a heavy smoker until about 18 months prior to the examination and that he still smoked cigars occasionally. He indicated that he had been having shortness of breath for the past four years. Upon examination, the Veteran was diagnosed with pleural plaques and bullous emphysema with fibrotic scarring. No acute infiltrate was indicated. PFTs showed FVC of 78.5 percent predicted, forced expiratory volume (FEV-1) of 45.2 percent predicted, and DLCO of 38.7 percent predicted. The examiner noted that the FEV-1 results most accurately reflected the Veteran’s level of disability. While the examiner provided a positive nexus opinion for the Veteran’s pleural plaques, he clearly and unambiguously stated that the Veteran’s nonservice-connected COPD was predominantly responsible for the limitation of pulmonary function, while the pleural plaques had “no effect on the Veteran’s pulmonary function.” Lay statements contained in the record at the time of the September 2013 rating decision include two August 2013 Veteran statements, as well as an August 2013 statement from S.M., confirming the Veteran’s history of breathing problems, but containing no competent evidence differentiating symptoms or functional loss between respiratory disabilities. Thus, at the time of the September 2013 rating decision, the evidence of record included: (1) diagnoses of COPD/emphysema, and pleural plaques; (2) PFT results and a medical opinion attributing the Veteran’s limitation on pulmonary function to COPD alone; and (3) competent and credible lay statements reporting the symptoms of shortness of breath and difficulty breathing. In the September 2013 rating decision, the AOJ granted service connection for pleural plaques and assigned a 60 percent disability rating effective May 9, 2013, by applying the PFT results from the September 2013 VA examination to the criteria set forth in Diagnostic Code 6833. In assigning the 60 percent rating, the AOJ made no recognition of the September 2013 VA examiner’s specific finding that the Veteran’s pleural plaques had no effect on pulmonary function, and instead attributed all functional loss as shown in PFT scores to his pleural plaques. The Board finds that the AOJ’s September 2013 rating decision was in error, as it was based on an erroneous understanding of the facts of the case existing at the time. As noted above, the September 2013 VA examiner made clear that the Veteran’s PFT results showing loss of pulmonary function were due to nonservice-connected COPD, and that the Veteran’s pleural plaques (while related to service) were essentially asymptomatic. At the time of the decision, no other evidence of record indicated that an overlap of symptoms existed. While the evidence did show the existence of comorbid conditions, when the September 2013 VA examiner was specifically asked to differentiate symptoms, the VA examiner did so unequivocally, with no attributions of symptoms to the service-connected pleural plaques. It cannot be inferred that the AOJ simply weighed the evidence of record at the time of its September 2013 rating decision and resolved all doubt in the Veteran’s favor, finding all impairment due to the pleural plaques. The rating decision explicitly states, “[w]e have assigned a 60 percent evaluation for your pleural effusion or fibrosis based on: Forced Expiratory Volume in One Second (FEV-1) of 40 to 55 percent of predicted value (45%).” The examiner who interpreted these very test results, specifically attributed the functional loss identified to nonservice-connected COPD. The rating decision contains no recognition of this fact, demonstrating an undebatable mis-reading of the September 2013 examination report. Had the AOJ applied the facts extant at the time of the rating decision, the Veteran would have been awarded a noncompensable disability evaluation under Diagnostic Code 6833 as his service-connected pleural plaques caused no limitation of pulmonary function. Accordingly, the error would have manifestly changed the outcome of the rating. The Board’s determination herein that there was CUE in the September 2013 rating decision is based solely on the evidence of record at that time of the September 2013 rating decision. The Board acknowledges that the Veteran’s former representative requested an expert medical opinion following the October 2015 rating decision proposing the disability evaluation reduction, and the AOJ complied in obtaining one (which similarly found that the Veteran’s pleural plaques caused no pulmonary function loss). The Board has also considered the arguments made by the Veteran’s former attorney in a November 2015 brief, suggesting that because the opinion of the September 2013 VA examiner was not supported by medical rationale, the reduction should not be effectuated without further medical clarification. The former attorney provided citations to treatise evidence in support of the claim. The Board has also considered the arguments of the Appellant’s attorney in an August 2020 brief, highlighting that in a May 2020 private medical opinion, Dr. I.N. opined that the Veteran’s COPD and asbestosis were indistinguishable in terms of severity. As noted above, with respect to CUE determinations, the focus is on the law and the facts in existence at the time of the decision in question. See 38 C.F.R. § 3.105(a)(1)(iii). Here, as discussed, notwithstanding any lack of medical explanation, the September 2013 VA examiner’s conclusion clearly indicated that the Veteran’s pleural plaques caused no loss of pulmonary function. Insofar as the AOJ relied on PFT scores reviewed by the September 2013 examiner in attributing all of the Veteran’s pulmonary functional loss to his pleural plaques, such represents a mis-reading of the conclusions of the report. This is factual error. The other medical evidence of record at the time of the rating decision did not comment on how symptoms of comorbid conditions were allocated. The only discussion on point was contained within the September 2013 examination report, and no other reasonable interpretation could be drawn from the examiner’s conclusions. The post-September 2013 medical opinion obtained by VA, the treatise evidence referenced in the November 2015 brief, as well as the recently submitted May 2020 private medical opinion, cannot be considered in this specific inquiry. For the reasons discussed above, the Board finds that the AOJ committed a CUE when it attributed functional loss, as identified at the September 2013 VA examination, to service-connected pleural plaques in assigning an initial 60 percent rating, when in fact the September 2013 VA examiner specifically attributed all functional loss to nonservice-connected COPD. The Board acknowledges the Appellant’s attorney’s recent statements that he and the Appellant are unaware of any statute, regulation or case that permits VA to reduce a rating on the basis of CUE. See the Appellant’s attorney’s August 7, 2020 brief. He asserts that while an award of service connection may be severed based on a finding of CUE under the provisions of 38 C.F.R. § 3.105(d), no such allowance is made for reductions of ratings. While the Board acknowledges that 38 C.F.R. § 3.105(d) outlines specific procedures and considerations that govern severance cases that are inapplicable to the facts and circumstances of this case, the regulations do not preclude VA from revising previously-assigned disability ratings based on CUE. Indeed, under 38 C.F.R. § 3.105(a): Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended. The language of this regulation is broad, and applies to all VA decisions. This regulation is not limited in scope to decisions awarding service connection, to the exclusion of decisions awarding specific disability ratings. In a recent precedential decision, the Court of Appeals for Veterans Claims (the Court) affirmed the Board in its finding that CUE existed in how the AOJ originally assigned staged ratings. See Young v. Wilkie, 31 Vet. App. 51 (2019). Interestingly, in Young, the appellant in that case argued that the Board failed to conduct a proper analysis under 38 C.F.R. § 3.105(a) because it relied on evidence post-dating the rating decision under review. However, in affirming the Board’s decision, the Court concluded that there was no indication the Board relied on post-rating decision evidence to make its CUE determination. The Court also clarified that the provisions of 38 C.F.R. § 3.105(e) pertaining to notice and effectuation of rating reductions based on improvement are not applicable to reductions based on CUE. See Young v. Wilkie, 31 Vet. App. 51, 56-57 (2019). The Board regrets the passing of the Veteran, and is thankful for his service to this country. For the reasons discussed above, however, the reduction from a 60 percent disability rating to a noncompensable disability rating for service-connected pleural plaques based on CUE, effective June 1, 2017, was proper, and restoration of the 60 percent disability rating as of such date is not warranted. The Board notes that the Appellant has a pending appeal for entitlement to service connection for the Veteran’s cause of death. The Board wishes to make clear that, by this decision, the Board is only finding that the Appellant’s newly-submitted evidence cannot be considered when rendering an decision as to whether CUE existed in the September 2013 rating decision. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.