The appeal as to whether clear and unmistakable error (CUE) exists in a November 2005 rating decision that established service connection for coccidioidomycosis (hereinafter, Valley Fever) and assigned a 50 percent initial evaluation, effective from May 17, 2004, to July 26, 2005, and from September 1, 2005, for substitution purposes is denied.
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Citation Nr: 20036648 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 16-01 859 DATE: May 28, 2020 ORDER The appeal as to whether clear and unmistakable error (CUE) exists in a November 2005 rating decision that established service connection for coccidioidomycosis (hereinafter, Valley Fever) and assigned a 50 percent initial evaluation, effective from May 17, 2004, to July 26, 2005, and from September 1, 2005, for substitution purposes is denied. FINDINGS OF FACT 1. A November 2005 rating decision established service connection for Valley Fever and assigned a 50 percent initial evaluation, effective from May 17, 2004, to July 26, 2005, and from September 1, 2005. 2. The Veteran initiated an appeal regarding the assigned initial evaluation for service-connected Valley Fever; however, after being provided a Statement of the Case in March 2006, he did not perfect an appeal to the Board of Veteran’s Appeals (Board) by filing a timely substantive appeal or similar documents. 3. The November 2005 rating decision is final regarding the assignment of a 50 percent initial evaluation for service-connected Valley Fever from May 17, 2004, to July 26, 2005, and from September 1, 2005. 4. The correct facts for the assignment of a 50 percent initial evaluation for service-connected Valley Fever from May 17, 2004, to July 26, 2005, and from September 1, 2005, as they were known at the time of the November 2005 rating decision, were before the adjudicator, and the statutory or regulatory provisions extant at the time were correctly applied. CONCLUSIONS OF LAW 1. The November 2005 rating decision is final with respect to the assignment of a 50 percent initial evaluation for service-connected Valley Fever from May 17, 2004, to July 26, 2005, and from September 1, 2005. 38 U.S.C. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2019). 2. The November 2005 rating decision that assigned a 50 percent initial evaluation for service-connected Valley Fever from May 17, 2004, to July 26, 2005, and from September 1, 2005, was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1989 to December 1996. This matter comes to the Board of Veterans' Appeals (Board) from a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. Unfortunately, during the pendency of the present appeal, the Veteran died in July 2017. Within a year of the Veteran’s demise, his widow filed an application to be substituted for her husband regarding the current appeal and a separate VA Form 21-22a (Appointment of Individual as Claimant's Representative form) in favor of the same private attorney who represented her late husband in this matter. In an April 2020 administrative decision, the Veteran’s widow was adjudicated as a proper substitute for the Veteran by AOJ, and thus, she is now the appellant regarding the matter before the Board. 1. Whether clear and unmistakable error (CUE) exists in a November 2005 rating decision that established service connection for Valley Fever and assigned a 50 percent initial evaluation, effective from May 17, 2004, to July 26, 2005, and from September 1, 2005, for substitution purposes Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of the “failure to follow the regulations” or “failure to give due process,” or any other general, non-specific claim of “error” meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating 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. 38 C.F.R. §§ 3.104(a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) [E]ither 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 based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. To raise a valid claim of CUE, the claimant must state, with “some degree of specificity,” what the error is and also provide “persuasive reasons” why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had “improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.” Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Analysis Initially, as outlined in the Introduction, the present appeal stems from a claim for revision of the November 2005 rating decision based on CUE contained, therein, that was filed and appealed by the Veteran prior to his demise. As the AOJ has determined that the appellant is an appropriate substitute for the Veteran, she has standing to continue pursuing the appeal to completion. Aside from her October 2017 request to be recognized as an appropriate substitute for the Veteran for the purpose of pursuing the current appeal, the appellant has made no assertions in furtherance of such. Accordingly, the Board’s analysis of current CUE motion will be focused on the contentions from the Veteran and his private attorney prior to the former’s demise. During the Veteran’s lifetime, the Veteran contended that the November 2005 rating decision contained CUE in determining that the severity and manifestations of his service-connected Valley Fever did not meet or closely approximate the criteria for a 100 percent evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6835, from May 17, 2004, to July 26, 2005, and from September 1, 2005. In support of this assertion the Veteran pointed to medical evidence from Drs. Brumble, George, and Bash, dated in April 2005, July 2005, and September 2005, respectively, showing that he “was suffering from essentially all of the symptoms” listed within the criteria for a 100 percent schedular evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6835. As noted above, a finding of CUE must be based on the controlling laws and facts of record at the time of the prior final denial. Essentially, the relevant laws and regulations referable to evaluating coccidioidomycosis (i.e., Valley Fever) under 38 C.F.R. § 4.97, Diagnostic Code 6835, were the same in November 2005 as they are today. Pertinently, Diagnostic Code 6835 is evaluated under the General Formula for rating Mycotic Lung Disease, which provides that a 50 percent evaluation is warranted for Valley Fever manifested by chronic pulmonary mycosis requiring suppressive therapy with no more than minimal symptoms such as occasional minor hemoptysis or productive cough. A 100 percent evaluation is assigned for chronic pulmonary mycosis with persistent fever, weight loss, night sweats, or massive hemoptysis. In the November 2005 rating decision, the AOJ recounted the evidence within the Veteran’s service treatment records, private treatment records from Dr. Bash dated from March 1997 to September 2005, and the findings of the July 2005 VA examiner (Dr. George). Based on this evidence, the AOJ assigned a temporary total evaluation based on surgery necessitating convalescence from July 27, 2005, to August 31, 2005, and a 50 percent initial evaluation from May 17, 2004, to July 26, 2005, and from September 1, 2005. In determining that the criteria for a 100 percent initial evaluation was not warranted from May 17, 2004, to July 26, 2005, and from September 1, 2005, the AOJ noted that the evidence included the physician’s notations that the Veteran reported experiencing nights sweats, fever, and prior weight loss, as a result of his service-connected Valley Fever; however, the AOJ summarily concluded in the November 2005 rating decision that “we have no objective evidence of chronic pulmonary mycosis with persistent fever, weight loss, night sweats, or massive hemoptysis.” Unfortunately, there is no further indication or insight to how the AOJ arrived at these conclusions. In the instant case, the Board finds that there is no CUE in the AOJ’s November 2005 rating decision assigned an initial 50 percent evaluation for service-connected Valley Fever from May 17, 2004, to July 26, 2005, and from September 1, 2005. In this regard, in determining that the assignment of a 100 percent initial evaluation was not warranted at any time during either period, the November 2005 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome. While the AOJ did not explain why the medical evidence showing the Veteran’s reports of experiencing nights sweats, fever, and prior weight loss, as a result of his service-connected Valley Fever did not amount to objective evidence, the evidence necessary to assign an initial evaluation for this disability under the appropriate laws was reviewable by the AOJ prior to the November 2005 rating decision. Importantly, judgments as to the credibility and probative value of individual items of evidence are inherent in the function of VA adjudicators. Additionally, while the AOJ did not weigh specific pieces of evidence in the November 2005 rating decision, the question before the Board, a matter of CUE, is not to be reviewed on the basis of how the AOJ arrived at the conclusion reached, but rather, whether such a conclusion could have reasonably been reached given the facts and law extant at that time. Consequently, the Board finds that the arguments in furtherance of the CUE claim are tantamount to a disagreement with how the facts were weighed by the adjudicator in November 2005. In this regard, a disagreement with how a prior adjudication evaluated the facts does not establish CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). This argument is therefore without merit. For the foregoing reasons, it cannot be said that the AOJ’s denial of entitlement to an initial evaluation in excess of 50 percent for service-connected Valley Fever from May 17, 2004, to July 26, 2005, and from September 1, 2005 in the November 2005 rating decision contained an outcome determinative error in applying the law extant at that time to the facts that were before the adjudicator. Rather, the Board concludes that the correct facts, as known at the time, were before VA adjudicators and the statutory and regulatory provisions extant at the time were correctly applied. Specifically, there is no basis to find that it was unreasonable for the AOJ to have determined that the criteria for a 100 percent initial evaluation were not not demonstrated at that time. Therefore, the allegations of CUE in the November 2005 rating decision are unsupported and the motion for revision or reversal of such decision must therefore be denied. The benefit of the doubt rule is not for application. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well-established that the benefit of the doubt doctrine can never be applicable in assessing a CUE claim because the nature of such claim is that it involves more than a disagreement as to how the facts were weighed or evaluated). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.