Citation Nr: 21029301 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-49 836 DATE: May 13, 2021 ORDER Entitlement to revision of a February 4, 2004, rating decision that confirmed and continued a previous denial of service connection for sleep apnea, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is granted, and the decision is revised to reflect an award of service connection for sleep apnea from November 4, 2002. FINDINGS OF FACT 1. The February 4, 2004, rating decision that confirmed and continued a previous denial of service connection for sleep apnea became final because the Veteran did not timely appeal. 2. The RO failed to consider the correct facts as shown in the evidence of record at the time of the February 4, 2004, rating decision, and this error compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different. CONCLUSION OF LAW The February 4, 2004, rating decision that confirmed and continued a previous denial of service connection for sleep apnea was clearly and unmistakably erroneous, and the decision is revised to reflect an award of service connection for sleep apnea from November 4, 2002. 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. Air Force from August 1976 to August 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a July 2019 decision, the Board denied the Veteran's motion for revision of a February 4, 2004, rating decision that confirmed and continued a previous denial of service connection for sleep apnea. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). A September 2020 memorandum decision of the Court set aside and remanded the July 2019 Board decision for readjudication. The Court found that the Board provided an inadequate statement of reasons or bases for its decision that there was no CUE in the February 2004 rating decision. The Court highlighted that the Veteran was referred in-service for a sleep study during the Veteran's medical out-processing from the military, and that in January 1998 four months after discharge the Veteran underwent a sleep study and was diagnosed with sleep apnea. The Court noted that the results of the sleep study showing a diagnosis of sleep apnea were returned to the referring physician and the U.S. Air Force. The Court noted that "[i]t is unclear given the evidence of record at the time of the February 2004 decision why the RO's denial of service connection was not the product of CUE." The Court directed the Board to provide an adequate statement of reasons or bases for its CUE determination. The Veteran asserts CUE in a February 2004 rating decision that confirmed and continued a previous denial of service connection for sleep apnea. The Veteran contends that he had in-service symptoms of sleep apnea, was referred for a sleep study by an in-service physician, and was diagnosed with sleep apnea within one year of his retirement from active service, which were all of record at the time of the February 2004 rating decision. 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). A February 4, 2004, rating decision confirmed and continued a previous denial of service connection for sleep apnea. The Veteran did not file a timely Notice of Disagreement challenging this determination within one year of the decision. Thus, the February 2004 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). The evidence of record reflects that the Veteran submitted an informal claim of service connection for sleep apnea in a Statement in Support of Claim (VA 21-4138), which was received by the RO on November 4, 2002. The RO, in a January 2003 rating decision, denied service connection for sleep apnea. The RO determined that there was no record of treatment for sleep apnea in service, and that the medical evidence failed to show a finding and or current diagnosis of sleep apnea. The RO noted that the Veteran did not reply to a request for evidence. In correspondence received on August 14, 2003, the Veteran stated that he wished to "amend [his service connection] claim to add ... sleep apnea." With his correspondence, the Veteran submitted a clinical polysomnogram report dated January 22, 1998. As new and material evidence was submitted within one year of the adverse January 2003 decision, the January 2003 rating decision was not final. The January 1998 polysomnogram report indicated that the Veteran was referred for the sleep study by his on-base treating physician, in order to assess for possible sleep apnea and the efficacy of nasal continuous positive airway pressure (CPAP). The Veteran reported that he had been told that he snored, and "sometimes very loudly." He endorsed awakening at night and gasping for air, and occasionally awakening "in an almost panic state." The Veteran noted that it was difficult to sleep on his back due to labored breathing in that position. He further endorsed daytime hypersomnolence, falling asleep during conversations, at meals, and at work, as well as difficulty breathing through his nose. The sleep study yielded a moderate degree of obstructive sleep apnea. As noted by the Court in its September 2020 memorandum decision, the report, to include its diagnosis of sleep apnea, was sent to the on-base physician and the U.S. Air Force. In a February 2004 rating decision, the RO confirmed and continued the previous denial of service connection for sleep apnea. The RO determined that the evidence did not show that sleep apnea was incurred in or caused by military service. The RO noted that the polysomnogram report showed a January 1998 diagnosis of obstructive sleep apnea, but determined that this did not show the disability during military service. The RO stated that the laws administered by VA do not provide for service connection for sleep apnea "unless the condition is diagnosed or treated in military service." The RO further stated that "there is no presumptive period following discharge for this disability." The February 2004 rating decision is based on incorrect facts and application of the laws and regulations governing service connection. In stating that VA does not provide for service connection "unless the condition is diagnosed or treated in military service," the RO mischaracterized 38 U.S.C. § 1110 and 38 C.F.R. § 3.303. Thus, the question before the Board is whether correction of this error would result in a change of the outcome of the case, such that it is undebatable that service connection for sleep apnea would have been granted should the correct facts and laws and regulations governing the service connection were considered. The evidence of record at the time of the February 2004 rating decision does demonstrate that it was undebatable that service connection was warranted for sleep apnea. The Veteran was treated for symptoms of sleep apnea and referred to the January 1998 polysomnogram by his in-service treating physician, and the results of such were sent to him and the U.S. Air Force. Thus, contrary to the determination by the RO, the record did show treatment associated with sleep apnea during active service. The correct facts, laws, and regulations demonstrated that service connection for sleep apnea was warranted. Based on the record in February 2004, reasonable minds could not have differed that the Veteran had been diagnosed with sleep apnea, well within a year after his discharge from active duty and that the sleep study that yielded such a diagnosis was based upon in-service complaints and referral. The totality of this evidence, all of record at the time of the February 2004 rating decision, leads to the undebatable and inescapable conclusion that service connection for sleep apnea was warranted at that time. In summary, the Board finds that the record shows that the RO did not have the correct facts before it at the time of its February 2004 rating decision and consideration of the correct facts mandated award of the benefit sought. Therefore, the Veteran's motion for revision of the February 2004 decision is granted, and it is changed to reflect an award of service connection from November 4, 2002. WILLIAM H. DONNELLY 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.