Citation Nr: 21022245 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-11 204 DATE: April 15, 2021 ORDER Entitlement to revision of a July 21, 2014, rating decision that assigned an initial compensable rating in its award of service connection for cluster headaches, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is denied. FINDINGS OF FACT 1. The July 21, 2014, rating decision that assigned an initial noncompensable rating, effective March 12, 2014, in its award of service connection for cluster headaches 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 RO considered the facts shown in the evidence of record and applied the correct law at the time of the July 21, 2014, 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 July 21, 2014, 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 July 21, 2014, rating decision that assigned an initial compensable rating in its award of service connection for cluster headaches 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. Navy from May 1982 to June 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2017 determination by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified on a November 2017, hearing held before a Decision Review Officer (DRO) at the Portland, Oregon RO, and subsequently at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) on September 2020. Transcripts of the hearings are associated with the electronic claims file. CUE The Veteran asserts CUE in a July 21, 2014, rating decision that assigned an initial compensable rating in its award of service connection for cluster headaches. The Veteran contends that the RO relied upon incorrect facts, as the record at the time of the rating decision demonstrated that he experienced prostrating attacks, such that at least a 30 percent disability rating should have been assigned. At the September 2020 Board hearing, the Veteran’s representative directed attention to VA outpatient treatment records which documented complaints and treatment for neck pain and cluster headaches, as well requests for refills of prescribed medication. The Veteran’s representative further asserts that the VA examination was premised upon incorrect facts. 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). An initial noncompensable rating, effective March 12, 2014, was assigned by the RO in its award of service connection for cluster headaches in a July 2014 rating decision. The Veteran did not file a timely Notice of Disagreement specifically challenging this determination within one year of the decision. Thus, the July 2014 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). At the time of the July 2014 rating decision, the claims file, in pertinent part, included the Veteran’s March 2014 Fully Developed Claim for service connection for headaches, service personnel and treatment records, VA treatment records, and a July 2014 VA examination report. 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). The current criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8100, remains the same in substance at all times since the time of the July 2014 rating decision. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, a noncompensable evaluation is assigned unless there are characteristic prostrating attacks averaging one in two months over the last several months, in which case a 10 percent rating is warranted. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months are rated as 30 percent disabling. Migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation, which is also the maximum evaluation available under this Diagnostic Code. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Neither the regulations nor the U.S. Court of Appeal for Veterans Claims (Court) has defined “prostrating.” Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100, verbatim, but does not specifically address the matter of what is a prostrating attack). “Prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster's New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1534 (32nd ed. 2012). Additionally, the phrase “productive of severe economic adaptability” has not been clearly defined by regulations or by case law. The Court has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual employability (TDIU). Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the headaches must be, at minimum, capable of producing “severe” economic inadaptability. The evidence of record reflects that the Veteran submitted a claim of service connection for headaches in a Fully Developed Claim (VA 21-526EZ), which was received by the RO on March 12, 2014. VA outpatient treatment records dated May 2014 indicate that the Veteran reported that he experienced headaches and was “in a lot of pain” and requested a refill of his prescribed Sumatriptan. Thereafter, records dated June 2014 note that the Veteran was prescribed high flow oxygen and Sumatriptan for his cluster headaches. That same month, the Veteran reported that he experienced three to four cluster headaches a day. The record reflects that the Veteran was afforded a VA headache examination in July 2014. The examination report referenced the Veteran’s diagnosis of cluster headaches. The Veteran reported that he was diagnosed with cluster headaches in the 1980s. He noted that he experienced headaches two times a year and occurred for one to three months at a time. The Veteran further noted that headaches usually lasted anywhere from one to three months. He indicated that a typical headache would be located from the right side back to the right eye, and described it as sharp, stabbing pain behind the eye with tearing. The Veteran further reported that he could have one to four headaches in a day, which would last for four hours, and occurred daily until it was “all gone.” The examination report referenced the Veteran’s complaints and treatment for tension and cluster headaches in service, as well as post-service treatment records dated July 2014 for cluster headaches and a prescription for Topamax. The VA examiner indicated that the Veteran’s treatment plan included taking medication for headaches, and reiterated that the Veteran was prescribed Imitrex on an as needed basis for headaches. The VA examiner further indicated that the Veteran experienced constant head plan on both sides of the head, and experienced non-headache symptoms of nausea, sensitivity to light and sound, eye tearing, and occasional vomiting. The examination report noted that the duration for typical head pain was less than a day on both sides of the head. While the VA examiner stated that the Veteran had characteristic prostrating attacks, the attacks were less frequent over the last several months, and were not productive of severe economic adaptability. The VA examiner opined that the Veteran’s headaches impacted his ability to work, as he had increased absenteeism with headaches, and that he missed approximately five days of work in the last 12 months. The RO, in a July 21, 2014, rating decision, awarded service connection for cluster headaches. In its award of service connection, the RO assigned an initial noncompensable rating, effective March 12, 2014. In its determination, the RO considered the Veteran’s service treatment records from May 1982 to June 1986, the July 2014 VA examination report, and VA treatment records from December 8, 2010 to July 16, 2014. The RO determined that a noncompensable rating was warranted based on “less frequent attacks” of the Veteran’s cluster headaches. The RO noted that a higher rating of 10 percent was not warranted unless there were characteristic prostrating attacks averaging one in two months over the last several months. The Veteran’s arguments are essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator in the July 2014 rating decision. The RO appropriately applied the rules and regulations governing VA’s Schedule for Rating Disabilities in its assignment of an initial noncompensable rating for cluster headaches. The record at the time of the July 2014 rating decision did not demonstrate that it was undebatable that the severity of the Veteran’s disability resulted in characteristic prostrating attacks averaging one in two months over the last several months. While VA records from June 2014 note the Veteran’s report of three to four cluster headaches a day, the Veteran also noted to the July 2014 VA examiner that he experienced headaches two times a year and occurred for one to three months at a time. Further, there is no evidence to show that the frequency and severity of headache symptoms endorsed by the Veteran at the July 2014 VA examination were not considered by the VA examiner in rendering her determination that the Veteran had less frequent prostrating attacks over the last several months. Post-service treatment records during the relevant period on appeal were considered as indicated on the face of the July 2014 rating decision. The arguably positive evidence in the Veteran’s records were evaluated along with the July 2014 VA examination report. As outlined above, the record contained various evidence at the time of the rating decision assigning an initial rating. Although the contentions on appeal go to the way that evidence was weighed, the Board does not find a basis for a determination that the rating assigned was based on the wrong facts or that the assigning of a noncompensable rating was an undebatable error. Evans v. McDonald, 27 Vet. App. 180, 185, 187 (2014). As noted at the time of the Board hearing, this is a high bar. The Board acknowledges that at the Board hearing, the Veteran’s representative directed attention to VA treatment records from April 2012 to December 2012 in support of the Veteran’s appeal. The highlighted records from this period, however, was prior to the effective date of the award of service connection. The cited treatment dates would only have significance in establishing the history of the Veteran’s disability, and indeed, “recent VA treatment records” were referenced by the July 2014 VA examiner as support for her positive nexus opinion. Therefore, the VA records discussed at the September 2020 Board hearing would have little probative value in determining the then-current nature and severity of the Veteran’s cluster headaches as they were approximately two years prior to the effective date of the award. 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). While it may be argued that the July 2014 VA examiner should have more appropriately considered the Veteran’s reported history of cluster headaches in the examination report, or more thoroughly questioned the Veteran regarding the frequency and severity of symptoms, such is an argument that the VA failed in its duty to assist the Veteran, which does not apply in CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001). Based upon the reasoning contained within the July 2014 rating decision, the RO did not commit clear and mistakable error based upon the record and the law that existed when the decision was made. To the extent that the Veteran’s representative directs attention to a list of leave requests (dated November 2016 to October 2017) submitted by the Veteran in November 2017 and a January 2018 VA examination, 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). Therefore, evidence that was not of record at the time of the July 2014 rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). The Board is sympathetic to the arguments of record to include those made at the Board hearing. After this review, however, the Board finds that the criteria for revision based on CUE are not met in this case. The Veteran’s motion for revision of the July 2014 decision must be denied. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.