Citation Nr: 0603319	
Decision Date: 02/06/06    Archive Date: 02/15/06

DOCKET NO.  03-24 941A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Whether the February 26, 1970 rating decision which reduced 
the evaluation for service-connected schizophrenic reaction 
from 100 percent to 70 percent contained clear and 
unmistakable error (CUE).


REPRESENTATION

Appellant represented by:	Kenneth M. Carpenter, Attorney 
at Law 


ATTORNEY FOR THE BOARD

Eric S. Leboff, Counsel


INTRODUCTION

The veteran had active service from April 1966 until July 
1968.  

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from a June 2000 rating decision of the Department 
of Veterans Affairs (VA), Regional Office (RO) in Detroit, 
Michigan.

Historically, in addition to the CUE claim presently on 
appeal, the veteran had also raised a claim of CUE as to a 
rating decision dated in June 1988.  That June 1988 decision 
reduced the veteran's disability evaluation for schizophrenic 
reaction from 100 percent to 70 percent effective September 
1, 1988.  The RO denied the CUE claim in October 1993 and the 
veteran initiated an appeal.  The matter ultimately came 
before the Board in December 1996, at which time the CUE 
claim was rejected.  However, the veteran appealed that 
decision to the United States Court of Appeals for Veterans 
Claims (Court).  In December 1997, the parties filed a Joint 
Motion to Dismiss.  The terms of such dismissal were detailed 
in an attached Stipulated Agreement.  Such agreement 
reinstated the 100 percent evaluation back to September 1, 
1988, effectively reversing the Board's December 1996 
decision (though not admitting that any error was committed 
in the adjudication of the claim).  Thus, only the CUE claim 
as to the February 1970 rating action is presently in 
appellate status.


FINDING OF FACT

In reducing the veteran's disability evaluation for 
schizophrenic reaction from 100 percent to 70 percent 
effective May 1, 1970, the RO did not apply the correct law 
as it existed at the time of the February 1970 determination; 
as a result, the February 1970 rating decision is fatally 
flawed.


CONCLUSION OF LAW

The February 1970 rating decision which reduced the veteran's 
disability evaluation for schizophrenic reaction from 100 
percent to 70 percent effective May 1, 1970, contains CUE.  
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105 (2005).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board notes that effective 
November 9, 2000, the President signed into law the Veterans 
Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & 
Supp. 2005 ).  However, the Board observes that the VCAA is 
not applicable to the moving party's allegation of CUE. The 
United States Court of Appeals for Veterans Claims (Court) 
has determined that CUE claims are not conventional appeals.  
Rather, such claims are requests for revisions of previous 
decisions.  A claimant alleging CUE is not pursuing a claim 
for benefits.  Instead, that claimant is collaterally 
attacking a final decision.  While CUE, when demonstrated, 
may result in reversal or revision of a final decision on a 
claim for benefits, it is not by itself a claim for benefits.  
See Livesay v. Principi, 15 Vet. App. 165 (2001).  
Additionally, in view of the Board's favorable disposition in 
this matter, further development with regard to any VA duty 
to notify and assist under VCAA would serve no useful 
purpose.  A remand is inappropriate where there is no 
possibility of any benefit flowing to the veteran.  Soyini v. 
Derwinski, 1 Vet. App. 540 (1991). 

Legal criteria

Previous determinations on which an action was predicated, 
including decisions of service connection will be accepted as 
correct in the absence of CUE.  Where evidence establishes 
such error, the prior decision will be reversed or amended.
For the purpose of authorizing benefits, the rating or other 
adjudicative 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. § 3.105(a).

The CAVC has provided the following guidance with regard to a 
claim of CUE:

In order for there to be a valid claim of 
'clear and unmistakable error,' 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.  The claimant, in short, must 
assert more than a disagreement as to how 
the facts were weighed or evaluated.

Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc).  
The CAVC in Russell further stated:

Errors that would not have changed the 
outcome are harmless; by definition, such 
errors do not give rise to the need for 
revising the previous decision.  

The words 'clear and unmistakable error' 
are self- defining.  They are errors that 
are undebatable, so that it can be said 
that reasonable minds could only conclude 
that the original decision was fatally 
flawed at the time it was made.  A 
determination that there was a 'clear and 
unmistakable error' must be based on the 
record and the law that existed at the 
time of the prior AOJ [agency of original 
jurisdiction] or Board decision.

Russell, 3 Vet. App. at 313-314; see also Bustos v. West, 179 
F.3d 1378 (Fed. Cir. 1999).

In determining whether there is CUE, the doctrine of 
resolving reasonable doubt in favor of the veteran is not for 
application, inasmuch as error, if it exists, is undebatable, 
or there was no error within the meaning of 38 C.F.R. § 
3.105(a). Russell, 3 Vet. App. at 314; see also Yates v. 
West, 213 F.3d 1372 (2000).

The Board wishes to emphasize that the CAVC has consistently 
stressed the rigorous nature of the concept of CUE.  "Clear 
and unmistakable error 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).  "'Clear and unmistakable error' requires that error, 
otherwise prejudicial, must appear undebatably."  Akins v. 
Derwinski, 1 Vet. App. 228, 231 (1991). "It must always be 
remembered that clear and unmistakable error is a very 
specific and rare kind of 'error'."  Fugo v. Brown, 6 Vet. 
App. 40, 43 (1993).  

In Russell, Fugo and other decisions, the CAVC has emphasized 
that merely to aver that there was CUE in a rating decision 
is not sufficient to raise the issue.  The CAVC has further 
held that simply to claim CUE on the basis that previous 
adjudications had improperly weighed the evidence can never 
rise to the stringent definition of CUE.

The determination regarding CUE must be made based on the 
record and the law that existed at the time the decision was 
made.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell 
at 314.  Evidence that was not of record at the time of the 
decision cannot be used to determine if CUE occurred.  See 
Porter v. Brown, 5 Vet. App. 233 (1993).

Analysis

In June 1968, the veteran was granted service connection for 
schizophrenic reaction and a 30 percent evaluation was 
assigned.  In a subsequent July 1969 rating action, the RO 
increased the rating to 100 percent, effective July 3, 1968.  
Then, in February 1970, the RO reduced the veteran's rating 
to 70 percent disabling, effective May 1, 1970.  Such rating 
resulted in an actual reduction in the veteran's combined 
disability evaluation and payment of compensation benefits.  
The veteran did not appeal that determination and it became 
final.  See 38 U.S.C.A. § 7105 (West 2002).  

The veteran now claims that the February 1970 rating decision 
contains CUE, entitling him to reinstatement of the 100 
percent rating from May 1, 1970.  

In asserting that CUE was committed by the RO in February 
1970, the veteran and his accredited representative argue 
that the RO failed to issue appropriate notice prior to 
reducing the veteran's disability evaluation.  In this vein, 
38 C.F.R. § 3.105(e), as in effect today and at the time of 
the February 1970 rating decision, provides that where a 
reduction in an evaluation of a service-connected disability 
is considered warranted and the lower evaluation would result 
in a reduction or discontinuance of compensation payments 
currently being made, a rating proposing the reduction or 
discontinuance must be prepared setting forth all material 
facts and reasons.  In addition, the RO must notify the 
veteran that he has 60 days to present additional evidence 
showing that compensation should be continued at the present 
level. 38 C.F.R. § 3.105(e).  

The Board has reviewed the claims file and finds no evidence 
demonstrating that the procedures outlined under 38 C.F.R. 
§ 3.105(e) were properly carried out.  A VA Form 20-822, 
Control Document and Award Letter dated March 6, 1970, shows 
that the veteran received notice of his new payment amounts 
subsequent to the rating reduction.  A VA Form 21-6798 also 
reflects notice of the disability award (in this case, the 
reduction).  However, that Form was dated February 26, 1970, 
the same day as the rating decision reducing the veteran's 
benefits.  The claims file fails to contain a notice of 
proposed reduction issued not less than 60 days prior to the 
rating decision which effectuated the reduction in benefits, 
as mandated under 38 C.F.R. § 3.105(e).

The Board agrees that the RO's failure to apply the rules of 
38 C.F.R. § 3.105(e) prior to reducing the veteran's 
disability evaluation in February 1970 constitutes clear and 
unmistakable error.  Indeed, it is obvious that the 
regulatory provisions in effect at the time of that 
determination were incorrectly applied.  As such, this is 
more than a mere disagreement as to how the facts were 
weighed or evaluated.  See Russell, 310, 313 (1992).  
Instead, this is a case in which the decision was fatally 
flawed at the time it was made as the veteran had not been 
afforded his right to have 60 days following notice of a 
proposed reduction to present argument and evidence to show 
that the monetary allowance should be continued at the 
present level.  

For the reasons discussed above, the February 1970 rating 
decision is found to contain CUE.  As such, it is reversed 
and the veteran's 100 percent evaluation is reinstated as of 
May 1, 1970.  Such 100 percent rating remains in effect until 
December 1, 1971, at which time a 70 percent evaluation was 
again effectuated until September 19, 1973, from which time 
the veteran's schizophrenia has been rated as 100 percent 
disabling.  

In conclusion, the February 26, 1970, rating decision which 
reduced the veteran's disability evaluation from 100 percent 
to 70 percent for schizophrenic reaction contains CUE and is 
hereby reversed.  A 100 percent rating is reinstated as of 
May 1, 1970 and remains in effect until December 1, 1971.


ORDER

CUE having been found in the February 26, 1970, rating 
decision, a 100 percent evaluation is reinstated from May 1, 
1970, until December 1, 1971.




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs