Citation Nr: 0319228 Decision Date: 08/06/03 Archive Date: 08/13/03 DOCKET NO. 99-18 371A ) DATE ) ) THE ISSUE Whether a May 1983 decision of the Board of Veterans' Appeal which denied entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) should be revised or reversed due to clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: The American Legion ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from June 1968 to December 1969. The veteran has challenged on the basis of claimed CUE a decision of the Board of Veterans' Appeals (the Board) dated May 20, 1983. In that decision, the Board denied what was characterized as a claim of entitlement to CUE. The veteran's motion for CUE stems from a letter dated August 13, 1999 from the veteran's local accredited representative to the Chairman of the Board. In the August 1999 letter, the veteran's representative requested that the case be reconsidered due to CUE "in the VA rating decision of 24 March, 1981 . . . ." The Board notes that to the extent that the veteran is attempting to challenge the March 1981 rating decision on the basis of CUE, that decision was affirmed by the Board in May 1983. When a determination of the Regional Office (RO) is appealed to and then affirmed by the Board, the RO's determination is subsumed by the Board's decision. See 38 U.S.C.A. § 7104(a) (West 1991); 38 C.F.R. § 20.1104 (2002). Thus, as a matter of law, no claim of CUE can exist with respect to the March 1981 RO decision. See Duran v. Brown, 7 Vet. App. 216, 224 (1994); accord, Johnston v. West, 11 Vet. App. 240, 241 (1998). Although the August 1999 letter from the veteran's local representative dwelt mainly with matters not germane to a Board CUE claim, there was sufficient reference to the Board's May 1983 decision to constitute a CUE motion under 38 C.F.R. § 20.1404, and the Board has treated the letter as such. The Board observes in passing that the Office Manager of the representative's Appeals and Special Claims Unit in Washington, D.C., perhaps recognizing deficiencies in the August 1999 CUE motion, requested in June 2003 that the file be sent to the American Legion so that additional argument could be made to the Board. In light of the favorable outcome of this decision to the veteran, the Board believes that additional argument is unnecessary. FINDINGS OF FACT 1. By a rating action in February 1978, the RO granted entitlement to TDIU effective January 10, 1978. 2. In March 1981, the RO, pursuant to DVB Circular 21-80-7, terminated entitlement to TDIU effective June 30, 1981. The veteran perfected an appeal of that decision. 3. In a decision dated May 20, 1983, the Board denied entitlement to TDIU. 4. The Board, in its May 1983 decision, failed to apply 38 C.F.R. § 3.343 to the termination of the veteran's TDIU rating. CONCLUSION OF LAW The motion for revision of the May 20, 1983 Board decision that denied TDIU is granted. 38 U.S.C.A. § 7111 (West Supp. 2002); 38 C.F.R. §§ 20.1400 - 20.1411 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking revision of a Board decision dated May 20, 1983 based on his contention that such decision contained CUE. In the interest of clarity, after disposing of certain initial matters the Board will review the factual background of this case; briefly discuss the relevant law and VA regulations pertaining to Board CUE; and then analyze the veteran's contentions and render a decision. The VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified as amended at 38 U.S.C.A. § 5100 et seq.]. The VCAA includes an enhanced duty on the part of VA to notify claimants as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its duty to assist claimants in the development of their claims. Regulations implementing the VCAA have been enacted. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim. See Holliday v. Principi, 14 Vet. App. 280 (2001). The VCAA is generally applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. However, in Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (Court) stated that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to CUE motions." In essence, the Court in Livesay continued to hold that the VCAA is potentially applicable to all pending claims, as it had held in Holliday. However, the Court further indicated that CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim of CUE it is not by itself a claim for benefits. Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Thus, a "claimant," as defined by 38 U.S.C.A. § 5100 (West Supp. 2002), cannot encompass a person seeking a revision of a final decision based upon CUE. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to CUE motions. See also 38 C.F.R. § 20.1411(c) and (d) (2002). Based on the Court's precedential decision in Livesay, the Board concludes that the moving party's CUE claim is not subject to the provisions of the VCAA. As noted above in the law and regulations section, a CUE claim must be viewed exclusively in light of evidence which was of record at the time the decision was made, in this case May 20, 1983. See 38 C.F.R. § 20.1403 (2002). Therefore, there is no additional evidence that must to be obtained by the Board. Factual Background In a February 1970 rating decision, service connection was granted for below the left knee amputation; a 100 percent convalescent rating was assigned from December 1969. Service connection was also granted for fragment wound of the right leg, evaluated as noncompensably disabling. In a June 1970 decision, the RO reduced the 100 percent rating to 40 percent for the veteran's service-connected below the left knee amputation. The RO also increased the rating for fragment wound of the right leg to 20 percent. In a February 1978 rating decision, the RO granted entitlement to TDIU effective January 10, 1978. The grant was based on the veteran's total 60 percent evaluation for below the left knee amputation and a shell fragment wound of the right leg. In a March 1981 rating decision, following a VA orthopedic examination and social and industrial survey in January 1981, the RO terminated entitlement to TDIU effective June 30, 1981. This termination was pursuant to DVB Circular 21-80-7, "Review of Individual Unemployability Cases". By this circular, dated in September 1980, ROs were directed to review cases of veterans who were in receipt of compensation, were rated unemployable, and were under the age of 60 and would not obtain the age of 60 in 1980. The termination of the TDIU rating was based on the review precipitated by this circular. The veteran perfected an appeal of the RO's decision. In the May 20, 1983 decision here under review, although acknowledging that TDIU had been awarded by the RO and the award subsequently terminated, the Board characterized the issue as one of entitlement to TDIU. The Board determined that additional examination of the veteran was not necessary and that recent medical evidence of record provided a sufficiently clear and comprehensive picture of the veteran's current condition. The RO denied entitlement to TDIU. Relevant Law and Regulations Board CUE A Board decision is subject to revision on the grounds of CUE and must be reversed or revised if evidence establishes such error. 38 U.S.C.A. § 7111(a) (West Supp. 2002). The Board has original jurisdiction to determine whether CUE exists in a prior final Board decision. Such review may be initiated by the Board, on its own motion, or by a party to that decision. 38 C.F.R. § 20.1400 (2002). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice, 38 C.F.R. §§ 20.1400-1411 (2002). Pursuant to § 20.1404(b), the motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged clear and unmistakable error, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non- specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions that fail to comply with the requirements set forth in this paragraph shall be denied. 38 C.F.R. § 20.1404(b) (2002). Rule 1403, which is found at 38 C.F.R. § 20.1403 (2002), relates to what constitutes CUE and what does not, and provides as follows: (a) General. Clear and unmistakable error 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. (b) Record to be reviewed - (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. (d) Examples of situations that are not clear and unmistakable error - (1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. The Board further notes that with respect to the final provisions of the regulations pertaining to the adjudication of motions for revision or reversal of prior Board decisions on the grounds of CUE, the definition of CUE was based on prior rulings of the Court. More specifically, it was observed that Congress intended that the VA adopt the Court's interpretation of the term "CUE." Indeed, as was discussed in the notice of proposed rulemaking, 63 Fed. Reg. 27534, 27536 (1998), the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of CUE." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) [remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage]. Therefore, the Board is permitted to seek guidance as to the existence of CUE in prior Board decisions based on years of prior Court decisions regarding CUE, such as Fugo v. Brown, 6 Vet. App. 40 (1993). In addition, the Board notes that for decisions issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. 38 C.F.R. § 20.1403(b) (2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). In this case, since the May 1983 Board decision in question was made prior to July 21, 1992, this provision does not apply. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Pertinent law and regulations in effect at the time of the 1983 Board decision Only the law as it existed at the time of the Board's decision may be considered. See 38 C.F.R. § 20.1403(b) (2002). In other words, the Board cannot apply the benefit of hindsight to its evaluation of the May 1983 decision in determining whether CUE existed. Cf. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The regulations concerning the continuance of total disability ratings which existed in May 1983 did not vary much from those in effect today. In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of § 3.105(e) were for application; the regulation indicated that caution was to be exercised in determining that actual employability was established by clear and convincing evidence. When in such a case the veteran was undergoing vocational rehabilitation, education or training the rating would not be reduced by reason thereof unless there was received evidence of marked improvement or recovery in physical or mental conditions or of employment progress, income earned, and prospects of economic rehabilitation, which demonstrated affirmatively the veteran's capacity to pursue the vocation or occupation for which the training was intended to qualify him (or her), or unless the physical or mental demanded of the course were obviously incompatible with total disability. 38 C.F.R. § 3.343(c) (1982). 38 C.F.R. § 3.344(c) (1982) provided that, if a rating had been in effect for five years or more, the provisions of 38 C.F.R. § 3.344(a) must be complied with in any rating reduction. The latter provision required that there be material improvement in the disability before there was any rating reduction. Analysis The regulation requires that Board CUE claims be pled with specificity. See 38 C.F.R. § 20.1404(b) (2002). In this case, the August 1999 CUE motion from the veteran's local representative, although incorrectly focusing more on actions taken by the RO than on the Board's decision, in essence maintains that the May 1983 Board decision contained CUE, in part, because the issue adjudicated by the Board was entitlement to TDIU instead of whether the RO's termination of the veteran's TDIU was proper. The record shows that the veteran perfected an appeal as to the March 1981 rating decision which terminated his entitlement to TDIU. The 100 percent rating was in effect from January 1978 to June 1981, less than 5 years, and the provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, did not apply. See 38 C.F.R. § 3.344(c) (1982). However, it is apparent from a review of the 1983 Board decision that there was failure to consider the provisions of 38 C.F.R. § 3.343(a) as they affected the veteran's case. As noted above, the veteran's appeal stemmed from a rating decision terminating entitlement to TDIU and not one which denied a grant of TDIU. This distinction is important. The error in the May 1983 decision was that the Board did not address the issue before it as a termination of a TDIU rating. Rather, it characterized the appealed issue as entitlement to a TDIU rating. Although the symptoms manifested by the veteran on the January 1981 VA examination and social and industrial survey might not have been as pervasive as those which he initially exhibited, VA adjudicators can not simply rate the disability as though it was a new claim. Rather, 38 C.F.R. § 3.343 makes the requirements for reduction from a total rating more stringent than those for an initial award. Reduction requires "material improvement", which by definition requires that the veteran attain improvement under the ordinary conditions of life, i.e., while working or actively seeking work. The Board, in its 1983 decision, referred to the termination of TDIU once, on page 2, as a matter of procedural history. There was otherwise no recognition of the legal significance of such termination. In treating the veteran's claim as one for establishment of TDIU, the Board applied an incurred standard of review to the veteran's appeal. In particular, the Board failed to apply the provisions of 38 C.F.R. § 3.343. The Board failed to demonstrate that actual employability was established by clear and convincing evidence prior to the termination of the TDIU rating. In effect, the Board improperly reversed the standard of proof by requiring the veteran to prove entitlement to a TDIU rating. This is the type of error 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. Accordingly, for the foregoing reasons and bases it is concluded that CUE was committed as a result of misapplication of the regulations in effect at the time of the Board's 1983 decision. ORDER The May 20, 1983 decision by the Board which denied entitlement to TDIU was based on CUE. The Board's May 20, 2003 decision is accordingly reversed; TDIU is restored. ____________________________________________ BARRY F. BOHAN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597B that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? In the section entitled "Appeal to the United States Court of Appeals for Veterans Claims," you are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," you no longer need to have filed a "notice of disagreement ... that led to the decision the Board has just reviewed for CUE ... on or after November 18, 1988" as a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.