Citation Nr: 23020437 Decision Date: 04/04/23 Archive Date: 04/04/23 DOCKET NO. 17-33 581 DATE: April 4, 2023 ORDER Entitlement to service connection for rhinitis, claimed as sinusitis, is granted. Reconsideration of the December 1988 rating decision assigning a 10 percent evaluation for irritable bowel syndrome (previously characterized as upper and lower gastrointestinal GI disorder with chronic pain features) is warranted. Entitlement to an initial 30 percent rating, but no higher, for IBS is granted. The request to revise the December 1988 rating decision, which failed to infer a claim of service connection for psoriasis, or skin condition, is denied. The request to revise the December 1988 rating decision, which failed to infer a claim of service connection for cervical spine disability, on the basis of CUE, is denied. The request to revise the December 1988 rating decision, which denied entitlement to service connection for psychiatric disorder (nervous condition) on the basis of CUE, is denied. The request to revise the December 1988 rating decision, which denied entitlement to service connection for chest wall pain, on the basis of CUE, is denied. The request to revise the December 1988 rating decision, which denied entitlement to service connection for hiatal hernia, on the basis of CUE, is denied. The request to revise the December 1988 rating decision, which denied entitlement to service connection for hypertension, on the basis of CUE, is denied. The request to revise the December 1988 rating decision, which denied entitled to service connection for low back disability, on the basis of CUE, is denied. The request to revise the December 1988 rating decision, which denied entitlement to service connection for left knee disability, on the basis of CUE, is denied. The request to revise the December 1988 rating decision, which denied entitlement to service connection for left testicle disability (orchitis), on the basis of CUE, is denied. The request to revise the December 1988 rating decision, which denied entitlement to service connection for residuals of Isoniazid (INH) treatment, on the basis of CUE, is denied. The request to revise the December 1988 rating decision, which denied entitlement to service connection for inguinal hernia, on the basis of CUE, is denied. The request to revise the December 2001 rating decision, which denied entitlement to service connection for psoriasis, on the basis of CUE, is denied. The request to revise the December 2001 rating decision, which denied entitlement to service connection for bilateral hearing loss disability, on the basis of CUE, is denied. FINDINGS OF FACT 1. The most probative evidence establishes a nexus between the Veteran's rhinitis and his service. 2. For the entire initial rating period, the Veteran's IBS symptoms more approximated severe symptoms with constipation, diarrhea, and abdominal distress. 3. The evidence at the time of the December 1988 rating decision does not show that a claim of entitlement to service connection for cervical spine and skin disabilities were reasonably raised by the record. 4. The correct facts, as they were known in December 1988, were before the adjudicators; and the statutory provisions and regulations extant at the time were correctly applied; To the extent of any error in the December 1988 rating decision, it is not absolutely clear that a different result would have ensued but for the error. 5. The correct facts, as they were known in December 2001, were before the adjudicators; and the statutory provisions and regulations extant at the time were correctly applied; To the extent of any error in the December 2001 rating decision, it is not absolutely clear that a different result would have ensued but for the error. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for rhinitis have been met. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. §§ 3.102, 3.303 (2022). 2. The criteria for entitlement to a 30 percent rating for IBS have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.59, 4.114, Diagnostic Code (DC) 7319 (2022). 3. The criteria for the request to revise the December 1988 rating decision, which failed to infer a claim of service connection for psoriasis, or skin condition, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 4. The criteria for the request to revise the December 1988 rating decision, which failed to infer a claim of service connection for cervical spine disability, on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 5. The criteria for the request to revise the December 1988 rating decision, which denied entitled to service connection for low back disability, on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 6. The criteria for the request to revise the December 1988 rating decision, which denied entitlement to service connection for residuals of INH treatment, on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 7. The criteria for the request to revise the December 1988 rating decision, which denied entitlement to service connection for nervous condition, on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 8. The criteria for the request to revise the December 1988 rating decision, which denied entitlement to service connection for chest wall pain, on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 9. The criteria for the request to revise the December 1988 rating decision, which denied entitlement to service connection for left testicle disability (orchitis), on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 10. The criteria for the request to revise the December 1988 rating decision, which denied entitlement to service connection for left knee disability, on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 11. The criteria for the request to revise the December 1988 rating decision, which denied entitlement to service connection for hiatal hernia, on the basis of CUE have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 12. The criteria for the request to revise the December 1988 rating decision, which denied entitlement to service connection for inguinal hernia, on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 13. The criteria for the request to revise the December 1988 rating decision, which denied entitlement to service connection for hypertension, on the basis of CUE have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 14. The criteria for the request to revise the December 2001 rating decision, which denied entitlement to service connection for bilateral hearing loss disability, on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022). 15. The criteria for the request to revise the December 2001 rating decision, which denied entitlement to service connection for psoriasis, on the basis of CUE, have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a) (2022) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to April 1988. This appeal to the Board of Veteran's Appeals (Board) arose from July 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in February 2023 by the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the file. Prior to adjudicating the CUE allegations regarding denial of issues, the Board wants to address an argument that the Veteran has asserted regarding the reconsideration of his issues. The Veteran asserts that newly service records were associated with the claim file after the December 1988 rating decision. Therefore, he is entitled to reconsideration of his claims previously denied in the final rating decision under 38 C.F.R. §3.156(c). 38 C.F.R. §3.156(c) states that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. This includes service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, as long as the other requirements of paragraph (c) of this section are met. The term "relevant," as used in 38 C.F.R. § 3.156(c)(1), means noncumulative and pertinent to the matter at issue in the case. See Kisor v. Shulkin, 869 F.3d 1360, 1368-69 (Fed. Cir. 2017) (accepting VA's interpretation of the relevancy requirement of 38 C.F.R. § § 3.156(c)), vacated on other grounds sub nom. Kisor v. Wilkie, 139 S.Ct. 2400 (2019). Where the newly obtained records do not remedy the defects of the prior claim and contain facts that were never in question, they are not "relevant" within the meaning of 38 C.F.R. § 3.156(c)(1). Id. Pertaining to the Veteran's sinus disability, to include rhinitis and sinusitis, the Board notes that relevant service treatment records were received by VA that were not previously considered or associated with claim file and are pertinent to the matter at issue in this case. Accordingly, the December 1988 rating decision's denial of entitlement to service connection for rhinitis did not become final, and this case stems from the Veteran's initial claim for service connection received in July 1988. See 38 C.F.R. § 3.156(c). Additionally, the issue regarding the assignment of a rating in excess of 10 percent for the Veteran's IBS, 38 C.F.R. § 3.156(c) is applicable as well, as those records are also relevant to the initial rating of his disability. Accordingly, the December 1988 rating decision's assignment of an initial rating of 10 percent has not become final, and this case stems from the Veteran's initial claim for service connection received in July 1988. Resultingly, the issues regarding CUE in the January 1992 and October 2009 rating decisions regarding the ratings assigned for IBS is not appropriate, as the claim for an initial rating is still pending. Thus, although these issues have been characterized as involving CUE in the December 1988 rating decision, the regulation regarding CUE is not applicable in these particular issues, as the decision is not final as to those issues. They have been recharacterized as noted above in the Order section of this decision. 1. Entitlement to service connection for rhinitis. The Veteran contends that he developed a sinus disability during his service. The evidence of the record establishes that the Veteran has a current diagnosis of rhinitis. A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). The service treatment records document multiple nasal symptoms, such as stuffiness, runny nose, sore throat, and cough. Sinusitis was ruled out in July 1984, after further examination. On the October 1988 VA examination, the radiological report showed some mucosal thickening and inflammatory change of both maxillary antrum. No air fluid level was seen. Ethmoid sinuses showed no significant change. Frontal sinuses were unremarkable. The conclusion provided was slight inflammatory changes of both maxillary antra, probably representing sinusitis. In another report, it was confirmed that sinusitis was ruled out, and the Veteran had a diagnosis of rhinitis. 38 C.F.R. 3.303 (d) states that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. After a thorough consideration of the evidence, the Board finds that a nexus has been established between the Veteran's rhinitis and his service. The evidence clearly shows that the Veteran continued to complain about the same symptoms during and since his service, as he shortly filed a claim in July 1988. Based on report on those symptoms and further examination, the Veteran was diagnosed with rhinitis. This is evident from the record. He exhibits a current diagnosis of a sinus disability, rhinitis. His service treatment records documented multiple complaints and treatment of symptoms, that have been later attributed to rhinitis due to diagnostic testing based on those symptoms. Again, regulations allow for service connection to be granted based on a post-service diagnosis, when the evidence shows that it incurred during service. Accordingly, as the criteria of entitlement to service connection for rhinitis have been met, entitlement to service connection is warranted. 2. Reconsideration of the December 1988 rating decision assigning 10 percent evaluation for IBS disability. The Board notes that in March 2003, the AOJ awarded a 30 percent rating for the Veteran's IBS from March 7, 2001. Essentially, the Veteran is seeking an earlier effective date for the assignment of 30 percent for his IBS. The Veteran is also seeking a rating in excess of 30 percent for his IBS. The Veteran's condition is currently evaluated under DC 7399-7319. DC 7319 evaluates irritable colon syndrome. Under, DC 7319, a 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Turning to the relevant evidence, the service treatment records document multiple complaints regarding his digestive disability. The Veteran experienced constipation, diarrhea, and stomach cramps on multiple occasions. He was assessed to have IBS or probable IBS multiple times. In August 1987, the Veteran reported experiencing diarrhea in Germany he also endorsed epigastric abdominal pain. In May 1988. The Veteran reported experiencing chronic abdominal pain and constipation. See June 2001 Medical Treatment Record - Non-Government Facility. He was afforded a VA examination in July 1988. On that examination, he reported experiencing abdominal pain, severe at times, and bowel trouble. On the examination, it was noted that he had daily abdominal pain that persisted all day. His bowel movements were sluggish but occurred daily. If there were no bowel movements that day, the pain would increase. He was noted to have lost some weight in the past year. He was assessed to have upper and lower GI disorder with chronic pain features of unknown etiology. On the December 1991 VA examination, it was noted that the Veteran had history of abdominal symptoms, such as crampy abdominal pain and chronic constipation for about six (6) to seven (7) years. The examiner assessed the Veteran's diagnosis as IBS with chronic constipation. In the November 2001 VA examination, the Veteran stated that there was no change since 1988. He has bowel movements every two or three days and took medication for treatment. He experienced constant abdominal discomfort. There was no presence of nausea, vomiting, hematemesis, or melena. His symptoms still included abdominal pains and constipation. On the October 2009 VA examination, the Veteran reported having symptoms of constipation and alternating diarrhea. He has abdominal pain every day, described as bloated, pressure-type feeling. He experienced nausea but did not vomit. In June, he was hospitalized for abdominal pain. A computerized tomography (CT) scan was performed, and he was diagnosed with diverticulitis. Abdominal examination showed mild distention but no tenderness. There was no hepatosplenomegaly. There was no evidence of anemia or malnutrition. The examiner noted that that while he had an episode of diverticulitis in June, it resolved with no residuals identified at that time. The examiner concluded that the diverticulitis episode resolved and there were no current symptoms or examination findings attributable to it. In February 2012, the Veteran was admitted to the hospital with abdominal pain and nausea. CT abdomen consistent with acute diverticulitis of sigmoid colon. The Veteran received treatment, which he tolerated well. See March 2012 CAPRI. After a through consideration of the evidence, the Board finds that for the entire initial rating period, to include prior to March 7, 2001, the Veteran is entitled to a 30 percent rating for his IBS under DC 7319. The service treatment records documents complaints of constipation and diarrhea. The Board notes that the 10 percent evaluation only contemplates bowel disturbances. The 30 percent contemplates diarrhea, or alternating diarrhea and constipation. The 30 percent rating does not provide a requirement of a particular duration and frequency regarding the diarrhea occurrences. It states that severe irritable colon syndrome is marked by symptoms of diarrhea, constipation, and abdominal distress. The medical records from service clearly show that the Veteran has experienced all of those symptoms on multiple occasions prior to March 2001. It is clear from the evidence that the severity, frequency, and duration of the Veteran's symptoms is contemplative of the 30 percent rating under DC 7319. He possessed each symptom noted under the 30 percent rating criteria. Regarding the Veteran assertion that he should be assigned a separate rating for diverticulitis, 38 C.F.R. § 4.114 dictates that ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. In this matter, diverticulitis is rated under DC 7327, which instructs to rate as irritable colon syndrome, peritoneal adhesions, or ulcerative colitis, depending on the predominant disability picture. Based on the evidence documenting the severity and nature of the Veteran's symptoms, the predominant disability is irritable colon syndrome. Accordingly, the Veteran is being adequately compensated for his symptoms. The Board acknowledges the Veteran's contention. However, what he seeks is precluded by the law. 30 percent is the maximum evaluation allowed under DC 7319. The Veteran argues that he should have been assigned a 60 percent rating under DC 7323, which evaluates ulcerative colitis. A 60 percent disability rating is assigned to ulcerative colitis that is severe; with numerous attacks a year and malnutrition, the health only fair during remissions. The examination reports and medical evidence does not indicate he experiences the severity of the symptoms contemplated by the 60 percent rating. On the October 2009 examination report, the Veteran stated that his appetite was fine and that his weight was increasing at that time. The examiner noted that the abdominal examination did not show evidence of anemia or malnutrition. VA and private medical evidence did not indicate signs or symptoms of malnutrition of any kind. He was noted to appear well nourished and hydrated at the nutritional assessments at the private facility. The VA medical records noted that he did not have any nutritional problems. Therefore, a higher rating under DC 7323 is not warranted. The Board has considered whether the Veteran is entitled to a higher rating under DC 7301 for peritoneal adhesions. A 50 percent evaluation is warranted for severe adhesions, manifested by definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea, or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. The x-rays of the record do not show adhesions manifested by definite partial obstruction. There has been no evidence, lay or medical, regarding ruptured appendix, perforated ulcer, severe peritonitis, or operation with drainage. There were no frequent episodes of severe colic distension, nausea, and vomiting. Therefore, the Veteran is not entitled to a higher rating under DC 7301. In summation, for the entire initial rating period, the Veteran is entitled to a 30 percent rating, but no higher, for his IBS, under DC 7319. CLEAR AND UNMISTAKABKE ERROR (CUE) 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. Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensured, the error complained of cannot be CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). There is a three-part test to determine whether a prior decision was based on CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) 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 CUE must be made on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The Veteran has asserted CUE was committed in December 1988, January 1992, December 2001, and October 2009 rating decisions. The Board will address those arguments below, beginning with the December 1988 rating decision. The December 1988 Rating Decision 1. The request to revise the December 1988 rating decision, which failed to infer a claim of service connection for cervical spine disability, on the basis of CUE. 2. The request to revise the December 1988 rating decision, which failed to infer a claim of service connection for psoriasis, or skin condition, on the basis of CUE. The Veteran has asserted that the AOJ failed to infer a claim for issues of entitlement to service connection for cervical spine disability and skin condition, claimed as psoriasis. A claimant may assert that VA failed to adjudicate a reasonably raised claim in the context of a request for revision of a prior decision on the basis of CUE. Richardson v. Nicholson, 20 Vet. App. 64, 71-72 (2006). When presented with a CUE motion asserting failure to adjudicate a reasonably raise claim, VA must make two threshold factual determinations. First, VA must give a full and sympathetic reading to a pro se claimant's prior submissions to determine whether such a claim was reasonably raised. If it is determined that a claim was reasonably raised, VA must then determine whether such a claim is pending or whether it was adjudicated as part of a final decision. If such a reasonably raised claim remains pending, then there is no decision on that claim to revise on the basis of CUE. However, in such a situation, the claim must be adjudicated. If VA determines that the claim was adjudicated, then the appellant may collaterally attack the resulting decision on the basis of CUE. Id. In this matter, in the July 1988 VA Form 21-526, the Veteran expressed that he was seeking entitlement to service connection for the following conditions: high blood pressure, stress, back trouble, chronic stomach trouble, hiatal hernia, sinusitis, recurring chest pains, INH therapy, TMJ dysfunction, left knee pain, orchitis, and [inguinal] hernia. In that form, he did not report any symptoms related to his neck or his skin. On the examination reports in conjunction with this claim, he did not report any pain regarding his neck. Regarding his skin, it was noted that he had a mild follicular eruption on the buttocks. Regarding a claim for a cervical spine disability, the evidence at that time does not reasonably raise such claim. He did not report experiencing neck symptoms while filing or during the VA examination. The Board acknowledges the in-service notations regarding neck pain. Still, this was not reported on the VA examination when seeking entitlement to service connection for multiple disabilities. He did not indicate, nor do the evidence show, that he experienced any symptoms in his neck related to service, or secondary to a disability he claimed when filing in July 1988. Regarding a claim for a skin condition, such as psoriasis, the evidence does not reasonably raise a claim for such as well. The Board acknowledges the Veteran's assertion that the INH therapy received in service was somehow related to the development of his skin condition. However, there is nothing in the evidence to indicate such a relationship. While the service treatment records document the Veteran receiving INH treatment, it does not show that a skin condition formed as a result of such treatment. Furthermore, even if the Board were to accept that a claim for a skin condition was reasonably raised, the claim was finally adjudicated in the December 2001 rating decision. The Veteran is collaterally attacking the December 2001 rating decision on the basis of CUE and those allegations will discussed later in the decision. In summation, as the evidence does not show that a claim of service connection for cervical spine disability and skin condition was reasonably raised, these allegations must be denied. 3. The request to revise the December 1988 rating decision, which denied entitled to service connection for low back disability, on the basis of CUE. 4. The request to revise the December 1988 rating decision, which denied entitlement to service connection for left knee disability, on the basis of CUE. 5. The request to revise the December 1988 rating decision, which denied entitlement to service connection for psychiatric disorder (nervous condition), on the basis of CUE. 6. The request to revise the December 1988 rating decision, which denied entitlement to service connection for chest wall pain, on the basis of CUE. 7. The request to revise the December 1988 rating decision, which denied entitlement to service connection for hiatal hernia, on the basis of CUE. 8. The request to revise the December 1988 rating decision, which denied entitlement to service connection for left testicle disability (orchitis), on the basis of CUE. The Board notes that the in June 2017, the AOJ awarded entitlement to service connection for a psychiatric disorder, depression, associated with service-connected IBS. Therefore, the CUE argument regarding denial of entitlement to service connection for nervous condition would effectively be seeking an earlier effective date for the award of psychiatric condition on the basis of CUE in the December 1988 rating decision. The Veteran asserts that the evidence at the time of the December 1988 rating decision clearly and unmistakably established service connection for low back, chest, and left knee disabilities, as a well as a psychiatric disorder, to include nervous condition, hiatal hernia, and a left testicle disability, claimed as orchitis. The service treatment records associated with the record at the time showed complaints regarding low back and left knee pain. The Veteran also had complaints regarding his chest, such as chest pain. The Veteran also experienced stress and anxiety. The Veteran also endorse left testis pain. On the March 1988 Report of Medical History, the Veteran reported recurrent back pain and experiencing depression and worry. The x-rays performed at the September 1988 VA examination showed that his left knee and lumbar spine was in normal condition, meaning no musculoskeletal abnormalities were noted. The examiner noted that there was full range of motion of the left knee, with no heart, redness, swelling, or joint effusion. His range of motion for his back was within normal limits as well, with no complaints, tenderness, or muscle spasms. The examiner concluded that there were no specific abnormalities found upon examination on which to base a diagnosis. Examination of the chest demonstrated clear lungs and a normal cardiovascular silhouette. The hila and mediastinum were unremarkable. The conclusion was negative survey chest examination. Regarding any presence of orchitis, or any other testicle disability, examination did not reveal hernia or a testicular anomaly. The July 1988 radiological report regarding the upper GI tract noted that ingestion of barium outlined a normal appearing esophagus. Hiatus hernia was not demonstrated. The stomach was within normal limits and the duodenum was unremarkable. The conclusion was negative examination of the upper GI tract. On the August 1988 psychiatric evaluation, it was reported that the Veteran cooperated to the best of his ability. His attention, orientation, memory, and intelligence were normal. His replies were coherent and relevant. There were no hallucinations or delusions present. Mood was neutral and affect was appropriate. General reasoning and judgment were not grossly impaired. No homicidal or suicidal trends present at the time. The examiner determined that there was no mental illness diagnosis present at the time. In the December 1988 rating decision, the AOJ denied entitlement to service connection for a left knee, chest wall, left testicle, and low back disabilities, as well as nervous condition (psychiatric disorder) and hiatal hernia. The AOJ reiterated the examination report regarding findings of no specific abnormalities to base a diagnosis for his left knee, chest, left testicle, and low back. The AOJ stated that the nervous condition examination found no mental illness at the present time, and that the GI examination was negative for the presence of hiatal hernia. The establishment of service connection first requires the finding of a current diagnosis of a disability. 38 C.F.R. 3.303. At that time, a diagnosis was required. The Board notes that subsequently, the Court has held that pain can be considered a disability, without a diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, this was not the law at the time of the December 1988 rating decision. Accordingly, based on the evidence, in conjunction with the pertinent laws and regulation extant in December 1988, the Board finds that the AOJ did not commit CUE in the rating decision when denying entitlement to service connection for left knee disability, low back disability, chest wall pain, left testicle disability, hiatal hernia, and nervous condition. The VA examination showed there were no current diagnoses of those conditions. Therefore, the first element of service connection was not met. Again, at that time, pain alone could not be considered a disability. A diagnosis was required in order to establish service connection. Since there were no current diagnoses rendered at the VA examinations pertaining to those claimed disabilities, the evidence supports the denial of entitlement to service connection. The Veteran asserted there was failure to follow the provisions under 38 C.F.R. §3.326, which governs VA examinations. As to any arguments regarding the inadequacy of the examinations, or the failure to obtain examinations, the Board notes that deficiencies with VA's duty to assist at the time of a prior denial cannot constitute CUE as a matter of law. See 38 C.F.R. § 20.1403(d)(2) (one example of a situation that is not CUE is the Secretary's failure to fulfill the duty to assist); see also Cook v. Principi, 318 F.3d 1334, 1344-47 (Fed. Cir. 2002) (breach of the duty to assist cannot form the predicate for a motion for revision of a finally decided claim based on CUE). 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. The Board acknowledges the Veteran's assertions regarding 38 C.F.R. §3.156(c) being applicable in these issues. In the service treatment records associated with file after the December 1988 rating decision, a notation regarding having a small hiatal hernia is present. However, as noted above, based on his symptoms in service, the Veteran was afforded VA examination of his GI tract. No hiatal hernia was found upon examination. The newly associated service treatment records do not remedy the defects of the prior claim and do not speak towards a fact or element in dispute, therefore are not relevant. Furthermore, the Veteran was awarded service connection for "upper and lower GI disorder", now characterized as IBS, based on those symptoms. Additionally, those records do not remedy the defects of the prior claim involving the Veteran's left knee, low back, chest wall, and psychiatric disabilities. At the time of the December 1988 rating decision, the AOJ knew of facts pertaining to in-service injuries or notations related to those claimed disabilities. The absence of in-service injury or event were the bases for the denials in those issues, after clinical evaluation. Accordingly, the Board determines that 38 C.F.R. §3.156(c) is not applicable here and reconsideration was not warranted. The Board is truly sympathetic to the Veteran's clam. Unfortunately, based on the regulations and evidence extant at the time of the rating decision, there was no error made that could be outcome determinative, as the evidence supports the AOJ's denials. As CUE was not committed in the December 1988 rating decision pertaining to the denials of the multiple disabilities noted above, entitlement to revision of those denials must be denied. 9. The request to revise the December 1988 rating decision, which denied entitlement to service connection for residuals of INH treatment, on the basis of CUE. The Veteran asserts that it was CUE to deny entitlement to service connection for residuals of INH treatment. When filing for service connection for residuals of INH treatment, the Veteran did not specify what disabilities or symptoms he was claiming to be residuals of such treatment. See July 1988 VA Form 21-526. The service records show that he did receive INH treatment regarding exposure to TB. Possible side effects noted was severe tiredness, nausea, and lack of appetite. On the VA examination report, it was noted that the Veteran received INH treatment from July 1985 to July 1986. The diagnosis provided regarding such was "h/o [of] [purified protein derivative] (PPD) and INH prophylaxis." Based on the pertinent laws and regulations and evidence extant at the time of the December 1988, the Board determines that the AOJ did not commit CUE in the denial of entitlement to service connection for residuals of INH treatment. The VA medical examination does not show that the Veteran was diagnosed with residuals pertaining to his in-service INH treatment. While it was noted that he had a history of PPD and INH treatment, the evaluation did not determine that he currently had any other disability resulting from his INH treatment. The Board acknowledges the Veteran's assertion that he developed a skin condition, such as psoriasis, as a result of his INH treatment. As noted previously, the VA examination shows that regarding his skin, a mild follicular eruption was found on his buttocks. However, the examiner did not attribute this to the residuals of INH treatment. Again, any failure or deficiencies in a VA examination or opinion cannot support a CUE claim. The Board is very sympathetic to his claim. However, the evidence is not clear that the Veteran had residuals of INH treatment. 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. Regarding additional service treatment records associated after the December 1988 rating decision, again, the matter at issue was not whether the Veteran received INH treatment during service. The basis of the denial was due to no current diagnosis of a condition related to his INH treatment. Therefore, 38 C.F.R. § 3.156(c) is not applicable here. Accordingly, entitlement to revision of the December 1988 rating decision regarding the denial of entitlement to service connection for residuals of INH treatment, on the basis of CUE, must be denied. 10. The request to revise the December 1988 rating decision, which denied entitlement to service connection for inguinal hernia, on the basis of CUE. The Veteran asserts that the denial of entitlement to service connection for inguinal hernia was the result of CUE. Again, the service treatment records document the Veteran's complaints regarding GI issues, such as epigastric stress, constipation, abdominal pain, and diarrhea. While he was assessed to have possible IBS, he was not ever diagnosed with inguinal hernia. On the July 1988 VA examination, the complaint noted that he was diagnosed with left inguinal hernia, and that he had pain on and off in the mid-abdominal area and constipation. He had nausea at times, but it did not seem to be related to the pain. The examination did not reveal the presence of a hernia. The assessment noted with abdominal pain of unknown etiology. He was referred to the surgical clinic. The reason for the request was noted as "left inguinal pain of [unknown] etiology." There was no provisional diagnosis. At the end of the report, the examiner noted that the Veteran had current diagnoses of upper and lower GI disorder with chronic pain features, etiology unknown. Under DC 7338, which evaluates inguinal hernia, small inguinal hernia, reducible, or without true hernia protrusion, is rated noncompensably (0 percent) disabling. Inguinal hernia that is not operated, but is remediable, is rated noncompensably (0 percent) disabling. Postoperative recurrent inguinal hernia, readily reducible, well supported by truss or belt, is rated 10 percent disabling. 38 C.F.R. §4.114 (1988). After a thorough consideration of the evidence and regulations extant at the time of the December 1988 rating decision, the Board finds that CUE was not committed by the AOJ when denying entitlement to service connection for inguinal hernia. Again, the establishment of service connection requires a diagnosis of a disability. Here, the VA examination revealed that the Veteran did not clinically have inguinal hernia. Based on those symptoms noted, the diagnoses rendered was abdominal distress, or chronic abdominal pain, of unknown etiology. In the December 1988 rating decision, the AOJ awarded entitlement to this diagnosis under DC 7399-7319. Therefore, the Veteran is receiving compensation for the diagnosis rendered based on the examination. Again, it was not clinically found that the Veteran had inguinal hernia. Accordingly, the evidence would support the AOJ in not awarding entitlement to service connection for such. As the evidence supports the AOJ determination, it cannot be considered CUE. Again, while the Board is truly sympathetic to the Veteran's allegations, as CUE was not committed in the December 1988 denial of entitlement to service connection for inguinal hernia, the request for revision of the decision must be denied. 11. The request to revise the December 1988 rating decision, which denied entitlement to service connection for hypertension, on the basis of CUE. The Veteran asserts that the AOJ committed CUE in denying entitlement to service connection for hypertension in December 1988. A review of the service treatment records show that the Veteran's blood pressure was taken during visits. There was nothing remarkable noted regarding those readings. The VA examination did reveal that the Veteran was diagnosed with mild diastolic hypertension. His blood pressure readings were noted as follows: 122/92, 130/94, and 126/92. The AOJ denied entitlement to service connection for hypertension, claimed as high blood pressure. The AOJ reasoned that the blood pressure readings during service were almost entirely within normal limits and there was no diagnosis of hypertension during service. The AOJ continued that the post-service elevated blood pressure readings were noted, but they were not to a compensable degree. In December 1988, under DC 7101, hypertensive vascular disease, or essential arterial hypertension, a compensable rating (10 percent) was warranted for diastolic pressure predominantly 100 or more. Note 2 states that when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a minimum rating of 10 percent will be assigned. 38 C.F.R. §3.309(a) states that service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. §3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. §3.309(a). Hypertension is among one of those chronic diseases. Based on the regulations and evidence extant at the time of the December 1988 rating decision, the Board finds that CUE was not committed by the AOJ when denying entitlement to service connection for hypertension. The Board notes that the current regulations regarding the rating criteria for hypertension includes a note that states: "For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." However, this note was not extant in December 1988. At that time, the regulation did not provide for a noncompensable rating for hypertension or to consider diastolic pressure over 90mm as hypertension. Even so, the AOJ also based its denial on the lack of in-service notations regarding hypertension or elevated blood pressure, stating that his blood pressure readings in-service was within normal limits. Even when considering 38 C.F.R. §3.309, the disease, hypertension, would have to manifest to a compensable degree within one year from service. As noted above, the blood pressure readings during and after service did not manifest to compensable degree, based on the criteria under DC 7101. Therefore, the Veteran would not have been entitled to service under 38 C.F.R. §3.309. Again, a disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. A factfinder has the prerogative to interpret the evidence and draws reasonable inferences from it. Evans v. McDonald, 27 Vet. App. 180, 187. The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. The service medical records associated later with the claim file do not speak towards a matter at issue in this case. Therefore, 38 C.F.R. §3.156(c) is not applicable here. Again, the Board acknowledges the Veteran's assertions and his sympathetic to his claim. However, based on the evidence, laws, and regulations, it cannot be determined that CUE was committed by the AOJ in the denial of entitlement to service connection for hypertension. Therefore, entitlement to revision of the December 1988 rating decision pertaining this denial must be denied. The December 2001 Rating Decision Before considering the CUE allegations pertaining to the denials of entitlement to service connection for bilateral hearing loss disability and psoriasis, the Board will address the Veteran's contention that the withdrawal of his appeal pertaining to the December 2001 rating decision was CUE. Again, a CUE motion is used to collaterally attack a final rating decision. Although this allegation pertains to the withdraw of an appeal of a final rating decision, it does not attack the determinations in the rating decision. While the Board is sympathetic to the Veteran's allegation of the wrongful withdrawal, this allegation is not appropriate for a CUE motion. Furthermore, the June 2003 withdrawal was in accordance with 38 C.F.R. §20.204 extant in 2003. At that time, an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. They must include the name of the veteran, the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. See 38 C.F.R. 20.204 (2003). The Board notes that prior to April 18, 2003, a representative may not withdraw a Substantive Appeal filed by the Veteran personally without the express written consent of the veteran. 38 C.F.R. § 20.204(c); see 68 Fed. Reg. 13,235-6 (March 19, 2003). In the June 2003 Third Party Correspondence, the Veteran's then-representative, Disabled American Veterans (DAV), stated that the Veteran informed the service organization that he was satisfied with his assigned rating for IBS and wished to withdraw his appeal regarding all other issues, such as entitlement to service connection for bilateral hearing loss disability and psoriasis. At the bottom of the letter, it was noted that the Veteran was carbon copied (cc'd) on the letter. As the withdrawal was done by the Veteran's representative at the time and included the necessary information noted in §20.204, the withdrawal would have been deemed valid. There was no other communication from the Veteran during that time to indicate otherwise. This withdrawal was also done after April 18, 2003, which would not require the express written consent of the Veteran. Again, while the Board is truly sympathetic to the Veteran's argument regarding the withdrawal, based on the regulations and evidence at that time, the withdrawal is considered to be valid. 12. The request to revise the December 2001 rating decision, which denied entitlement to service connection for bilateral hearing loss disability, on the basis of CUE. The Veteran asserts that the AOJ committed CUE in the December 2001 rating decision when it denied entitlement to service connection for bilateral hearing loss disability. The Veteran filed his claim of service connection for bilateral hearing loss disability in March 2001. See March VA Form 21-4138 (Statement in Support of Claim). In an in-service audiogram taken in December 1981, the Veteran's puretone thresholds were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 15 0 LEFT 5 5 5 10 0 On the March 1988 Report of Medical history, the Veteran denied having or ever having experiencing hearing loss. In a March 2001 private audiogram, the Veteran's puretone thresholds were noted as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 25 20 LEFT 10 15 20 30 30 The overall impression reported on that audiogram was that the Veteran had normal or essentially normal hearing. See May 2001 Medical Treatment Record - Non-Government Facility. In the December 2001 rating decision, the AOJ denied entitlement to service connection for bilateral hearing loss disability. The basis provided was that there was no evidence showing that the Veteran had current hearing loss disability and no record of hearing loss or acoustic trauma in service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2001). Accordingly, based on the laws, regulations, and evidence extant at the time of the December 2001 rating decision, the Board finds that CUE was not committed in the denial of entitlement to service connection for bilateral hearing loss disability. The evidence showed that the Veteran's puretone threshold values were not indicative of a hearing loss disability in accordance with the regulations, 38 C.F.R. §3.385. Therefore, at that time, he did not have a current diagnosis of a hearing loss disability, which again is the first element of establishing entitlement to service connection for bilateral hearing loss. The evidence supports the lack of current diagnosis of a hearing loss disability at the time of the December 2001 rating decision. Again, any arguments regarding any duty to assist errors, such as obtaining an adequate examination and opinion, cannot rise to the amount of CUE. While the Board is sympathetic to the Veteran's claim, as CUE was not committed in the December 2001 rating decision's denial of entitlement to service connection for bilateral hearing loss disability, the request for revision of the decision must be denied. 13. The request to revise the December 2001 rating decision, which denied entitlement to service connection for psoriasis, on the basis of CUE. The Veteran asserts that the AOJ's denial of entitlement to service connection for a skin condition, such as psoriasis, was the product of CUE. In the March 2001 VA Form 21-4138 (Statement in Support of Claim), the Veteran sought entitlement to service connection for psoriasis or a skin disorder. The review of the service treatment records was absent any documented complaints, treatment, or diagnosis of a skin condition. Private medical records were submitted in May 2001. In June 1999, it was reported that the Veteran had a flare of his psoriasis. Two weeks later, it was noted that he had developed a bright red patch on his right buttocks that flared after he stopped taking Temovate cream. In July 1999, it was noted that the Veteran's psoriasis lesions had settled down nicely. The Veteran was afforded a VA examination in November 2001. It was noted that the Veteran had psoriasis since 1983, which began while he was on active duty in Greece. It was also noted that there was a family history of psoriasis. The physical examination revealed a faintly red, dry, slightly scaly eruption covering the entire buttocks and extending onto the proximal inner thighs. There were small psoriatic looking patches on the right side of his scalp. The assessment provided was moderate to severe psoriasis suppressed with medication. In the December 2001 rating decision, the AOJ denied entitlement to service connection for psoriasis. The AOJ stated that even though there was medical evidence of a current diagnosis of psoriasis during service, there was no medical evidence showing treatment of the condition during his service. After a thorough consideration of the evidence, and pertinent laws and regulations extant at the time of the December 2001 rating decision, the Board finds that the AOJ did not commit CUE in the denial of entitlement to service connection for psoriasis. The AOJ's basis of the denial was due to no in-service injury or event related to the Veteran's psoriasis. The second element of service connection requires such. The Board acknowledges the Veteran's assertions that his psoriasis was related to his INH treatment. However, at the time of the rating decision, there was no evidence indicating such relation. The Board also acknowledges that the Veteran has submitted photographs of himself during his active service, apparently showing his psoriasis. The Board notes that those photographs are unclear. See March 2016 VA Form 21-4138. The Board does not doubt or question that those photographs do show the Veteran's skin condition during that time. However, these photographs were not associated with the claim file at the time of the decision. As stated before, 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). Although these photographs were taken during his service, these photographs are not service medical records, in which the AOJ would be in actual or constructive possession. Even if it is accepted that there was an error in not considering the photographs evidencing psoriasis, the evidence of the record does not provide a nexus between the Veteran's skin condition and his service, such as INH treatment. The 2001 VA examination does not provide a nexus opinion. The Board acknowledges that the examination report includes that the Veteran had psoriasis since 1983. However, this was not an opinion from the examiner, just a statement regarding the medical history, which in part is provided by the Veteran. Again, the AOJ has the prerogative to interpret evidence and draw reasonable inferences from it. See Evans, supra. The evidence supports that the AOJ weighed the lack of in-service documentation more than the Veteran's reported statement regarding the onset of his psoriasis. A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. Any argument that reasonable doubt should have been resolved in his favor cannot support a finding of CUE. A reasonable doubt arises with a weighing of the evidence. Regarding any argument that 38 C.F.R. §3.309 was not applied, a skin condition, such as psoriasis, was not included as a chronic disease subject to presumptive service connection. Therefore, establishing a nexus based on continuity of symptomatology was not applicable in this matter. Again, any argument that the AOJ should have obtained a medical opinion is an argument based on deficiencies in the duty to assist, which cannot constitute CUE as a matter of law. Accordingly, while the Board is very sympathetic to the Veteran's claim, CUE was not committed in the December 2001 denial of entitlement to service connection for psoriasis. Therefore, the request to revise the decision must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.