Citation Nr: 21030643 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-45 901 DATE: May 19, 2021 ORDER Revision, based on clear and unmistakable error (CUE), in a February 2008 rating decision that denied service connection for chronic obstructive pulmonary disease (claimed as asthma) is denied. FINDINGS OF FACT 1. The Veteran's claim of service connection for COPD (claimed as asthma) was denied in a February 2008 rating decision that became final because he did not submit a notice of disagreement. 2. The correct facts, as known at the time, were before the VA adjudicators in February 2008 and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW The criteria for entitlement to revision of a February 2008 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FIDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1996 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in March 2016 for additional development. CUE The Veteran seeks revision, based on CUE, of the February 2008 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). Here, the February 2008 rating decision became final. 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 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 adjudication 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. 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 the 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 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. As a threshold matter, the Board finds the argument 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. Veteran's Contentions The Veteran contends that the February 2008 rating decision contains CUE in its denial of the Veteran's claim of service connection for asthma. More specifically, he asserts that he was sound on entry to service and had asthma at separation. The RO failed to properly develop his claim because it was erroneous for the RO to develop his claim as one for chronic obstructive pulmonary disease (COPD) and not for asthma. He asserts that the RO did not consider all of the records and only looked at records from the VA medical center. The February 2008 rating decision denied service connection for COPD (claimed as asthma). A review of service treatment records revealed that the Veteran was diagnosed with asthma in service, treatment consisted of albuterol and recommendation for smoking cessation. VA Medical Center records reveal treatment for shortness of breath. The lung examination from these records revealed the Veteran wheezes with overall good air movement. He was diagnosed with COPD. The January 2008 VA examination report reflects that the examiner noted that the Veteran had a history of asthma, for which he was treated in service and reported that he had complaints of shortness of breath, but physical examination revealed no obvious lung abnormalities. The chest x-ray revealed multiple lung nodules located in the right lung. Pulmonary function tests were conducted. The examiner interpreted these tests and revealed COPD of emphysematous type that was related to tobacco and polysubstance abuse. The report does not reflect a diagnosis of asthma. The VA examiner opined that current COPD was not related to treatment in service for asthma. CUE Analysis The Board finds that revision based on CUE is not warranted. The Veteran filed a claim of service connection indicating that his asthma started in service and the condition worsened to the point that VA Medical Center classified him as having severe COPD. It is clear from the face of the February 2008 rating decision, that the Veteran's CUE contention is not based on an error in fact. The RO properly noted, as the Veteran highlights, that he was treated for asthma in service. Service treatment records show that the Veteran experienced shortness of breath in service. He was treated with albuterol and has follow up appointments for status asthmaticus. On separation from service, the Veteran checked that he experienced asthma on the report of medical history. The separation report of medical examination does not mention an asthma diagnosis. The RO correctly noted the Veteran's service treatment record notations in its February 2008 rating decision. As a result, the question here is not whether the facts were incorrectly applied, but whether the law was erroneous applied, and the application of law manifestly changed the outcome. The Board first notes that the Veteran's contention that the RO failed to properly develop the claim as service connection for asthma rather than COPD amounts to a duty to assist failure. This is because the Veteran's own statements indicate that he had COPD and the most recent VA examination showed that the Veteran had COPD. Further, the argument that the RO still should have developed the claim by seeking a medical opinion or further developing the Veteran's contention that his asthma was related to service amounts to an allegation that the RO failed its duty to assist. A breach of the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. It is also clear that the RO considered the evidence of record, beyond just the VA treatment records in its February 2008 rating decision. The RO specifically highlight service treatment records and the VA examination in its consideration of the evidence. Lastly, the Board finds that it did not constitute CUE for the RO to deny service connection for COPD (claimed as asthma). This is because upon VA examination, the VA examiner conducted numerous tests and ultimately determined that the appropriate diagnosis for the Veteran's condition was severe COPD of the emphysematous type with presence of bronchospasm. See January 2008 VA examination. Notably, a claim for VA benefits remains pending until it is finally adjudicated, or if VA fails to properly notify the claimant of the denial of the claim. Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009); 38 C.F.R. § 3.160(c); Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). "It is well established, however, that in certain circumstances, pursuant to the implicit denial doctrine, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address that claim in its decision." Cogburn v. Shinseki, 24 Vet. App. 205, 210 (2010) citing Adams, 568 F.3d at 961 (internal quotations omitted)' Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007). The Court in Ingram determined that where a decision discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not "specifically" deny that claim. Id. The key question in the "implicit denial" inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well. Adams, 568 F.3d at 962-963. In Cogburn v. Shinseki, 24 Vet. App. 205 (2010), the Court listed four factors that must be considered when determining whether a claim was implicitly denied: (1) the specificity or relatedness of the claims (e.g., is the claim for a generalized set of symptoms, a specifically diagnosed disorder, or two (or more) specifically diagnosed disorders that are closely related); (2) whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied; (3) the timing of the claims (e.g., were the claims filed in the same application, within a short period of time from each other, etc.); and (4) whether the claimant is represented. Id. at 212-214. In this case, the Board finds that the claim for service connection of COPD that was adjudicated in the February 2008 rating decision and the claim of service connection for asthma are related claims. In the context of determining whether a claim remains pending or was finally decided, the word "claim," means a request for a particular benefit, i.e., pension benefits. See Rice v. Shinseki, 22 Vet. Ap. 447, 451 (2009) (noting that the term "claim" has been used to describe a wide variety of circumstances, and that in Ingram the word "claim" means "the specific benefit sought"); Ingram, 21 Vet. App. at 247 (noting that the elements of a section 1151 "claim" and a pension "claim" are entirely different); 38 C.F.R. § 3.1(p) ("claim" means a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA). In seeking service connection, the Veteran specifically outlined that he was seeking service connection because he had asthma in service that worsened to the point of him receiving a COPD diagnosis. As a result, it is clear that these claims are related. The adjudication for service connection of COPD alluded to the claim of service connection for asthma. The RO explicitly highlighted that they were adjudicating the claim of service connection for COPD (claimed as asthma). The RO also summarized relevant facts related to the in-service manifestations of the Veteran's asthma, but ultimately highlighted that the most recent medical information showed a COPD diagnosis. As a result, it could be reasonably inferred that the Veteran's claim of service connection for asthma was denied in the February 2008 rating decision because of the specific references to his in-service symptoms, subsequent treatment records, and explicit reference to the COPD being "claimed as asthma." The claims were filed in the same application for benefits. As noted above, the Veteran sought service connection for asthma as he was now diagnosed with COPD in his original application for benefits. See July 2007 statement in support of claim. The RO developed his claim for both asthma and COPD, but ultimately explicitly denied service connection for COPD after a VA examination confirmed this diagnosis. Id; see also January 2008 VA examination. The Board notes that the Veteran is currently represented and was represented at the time of the February 2008 rating decision. Thus, consideration of the Cogburn factors leads to a finding that the "claim" of service connection for asthma was implicitly denied in the February 2008 rating decision. Given that the Veteran was represented by an attorney in 2008 and an analysis of the remaining factors, it would be clear to a reasonable person that VA denied service connection for asthma. The rating decision specifically noted that the Veteran claimed the condition as asthma and the decision specifically discussed facts related to the Veteran's asthma and asthma symptoms. There is no question that the RO provided enough information in its February 2008 rating decision for the Veteran to reasonably know that service connection for asthma would not be granted. Thus, the relatedness, timing, and specificity of the adjudication factors in Cogburn all support a finding that the implicit denial doctrine would apply, and that no claim seeking service connection for asthma remains pending. Further, service connection requires evidence of a current disability. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 U.S.C. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). While there is evidence that the Veteran also suffered from asthma or had asthmatic symptoms, for the Board to find that the RO was required to accept as true evidence (VA treatment record, service treatment records) that the Veteran currently had asthma as opposed to the VA examination that determined the Veteran had COPD would amount to an error regarding the weighing of evidence. However, "[i]t is the prerogative of the factfinder . . . to interpret the evidence and draw reasonable inferences from it." 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. As a result, the Board finds that revision of the February 2008 rating decision, based on CUE, is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ijitimehin, Kemi D. 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.