Citation Nr: 0708830 Decision Date: 03/26/07 Archive Date: 04/09/07 DOCKET NO. 05-12 184 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a Board of Veterans' Appeals (Board) July 8, 1981, decision which denied the veteran's total rating for individual unemployability (TDIU). REPRESENTATION Moving party represented by: Sandra E. Booth, Attorney-at- law ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from October 1963 to February 1967. This matter comes before the Board on a March 2005 motion by the veteran alleging CUE in a Board decision dated July 8, 1981, which denied TDIU benefits. FINDINGS OF FACT 1. By decision of the Board in July 1981, the Board upheld the termination of a TDIU rating. 2. The July 1981 Board decision failed to apply the proper statutory or regulatory provisions at the time, such that the outcome of the claim would have been manifestly different but for the error. CONCLUSION OF LAW The Board decision of July 8, 1981, which upheld the termination of a TDIU rating, by denying the claim of a TDIU, contains CUE. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The moving party contends that there was clear and unmistakable error (CUE) in the July 8, 1981 Board decision which denied entitlement to TDIU benefits. It is alleged that the Board failed to consider the appropriate laws and regulations that apply to termination of TDIU benefits, and in essence, adjudicated the claim as an original claim of entitlement for TDIU benefits. Further, it is alleged that since the veteran clearly stated that he disagreed with the November 1979 rating action to terminate his TDIU benefits, submitted evidence in support of that claim, and appropriately filed an appeal to the same, it was CUE to adjudicate his claim as an original claim for benefits. As a preliminary matter, while the Board is generally required to address the Veterans Claims Assistance Act of 2000 (VCAA), the Board notes that it is not necessary to discuss the VCAA in connection with the veteran's Motion in this case. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") has held that the provisions of the VCAA do not apply to a claim based on an allegation of clear and unmistakable error in a previous Board decision. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). The Court held that an attempt to obtain benefits based on an allegation of clear and unmistakable error "is fundamentally different from any other kind of action in the VA adjudicative process. " Livesay, 15 Vet. App. at 178. An allegation of CUE does not represent a "claim," but rather is a collateral attack on a final decision. It involves a legal challenge to a prior Board decision and does not involve acquiring or submitting any additional evidence. Therefore, the provisions of the VCAA are not for application in the adjudication of the issue of CUE in a prior final Board decision. A Board decision is final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100. A final Board decision is subject to review by the Board on motion alleging clear and unmistakable error. 38 U.S.C.A. § 7111(a); 38 C.F.R. § 20.1400. A motion alleging clear and unmistakable error in a Board decision is a matter of original jurisdiction with the Board. See 38 U.S.C.A. § 7111(e); 38 C.F.R. § 20.1402 (2002). Motions alleging such error are not, except as otherwise provided, subject to rules relating to processing and disposition of appeals. 38 C.F.R. § 20.1402). 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. 38 C.F.R. § 20.1403(a). The decision is to be based on the record and the law that existed when the challenged decision was made. 38 C.F.R. § 20.1403(b). A clear and unmistakable error is one which, had it not been made, would have manifestly changed the outcome when it was made. The error cannot be clear and unmistakable unless it is absolutely clear that a different result would have ensued, but for the error. 38 C.F.R. § 20.1403(c). The following do not constitute clear and unmistakable error: (1) changed diagnosis; (2) failure to fulfill the duty to assist; or (3) a disagreement as to how facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). 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. 38 C.F.R. § 20.1403(e). The regulatory definition of clear and unmistakable error was based on prior rulings of the Court. More specifically, it was observed in the notice of proposed rulemaking that Congress intended that VA adopt the Court's interpretation of the term "clear and unmistakable error." Indeed, as was discussed in the notice of proposed rulemaking, 63 Fed. Reg. 27,534-36 (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. 1,567-68 (daily ed. Apr. 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). Thus, the Board is permitted to seek guidance as to the existence of clear and unmistakable error in prior Board decisions based on years of prior Court precedent regarding clear and unmistakable error, such as Fugo v. Brown, 6 Vet. App. 40 (1993). Clear and unmistakable error may be factual, or it may be legal. On reviewing this Motion on its merits, it is obvious that the Board did commit a legal error when it evaluated the veteran's claim as entitlement to TDIU benefits. By rating decision of November 1979, the RO indicated that a rating reduction was being taken pursuant to VAR 1105(E) (also known as 38 C.F.R. § 3.105(e) (1979). Applicable law at that time provided that where the reduction in evaluation of a service- connected disability or employability status is considered warranted and lower evaluation would result in reduction or discontinuance of compensation payments currently being made, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from date of notice to the payee expires. The veteran will be notified at his or her latest address of record of the action taken and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. The RO notified the veteran by letter of November 1979, that the evidence of record established that the veteran's service-connected condition had improved and no longer prevented him from engaging in substantially gainful employment. He was informed that he could submit additional evidence tending to show that the reduction should not be made. He was told the type of medical and lay evidence to provide and also informed that if no such additional evidence was provided within 60 days of the date of the letter, it would be necessary to make the reduction. He was provided notice of his appellate and procedural rights. In a December 1979, notice of disagreement (NOD), the veteran specifically disagreed with the November 1979 decision that indicated that his condition had improved and no longer prevented him from engaging in substantially gainful employment. He attached a medical statement, and lay statements on behalf of his claim. He also asked for a "statement of facts" in an effort that he might perfect his appeal. This was all done within the 60 day reduction period. A statement of the case (SOC) was issued in May 1980, which addressed the issue of entitlement to a TDIU. Although the issue was characterized as entitlement to a TDIU, the RO stated that it was the veteran's contention that his condition had not improved, and had an adverse effect on employment. This was clearly an argument by the veteran regarding termination of benefits, not entitlement. The RO presented a summary of evidence relating the history of the veteran's TDIU and the termination of the TDIU benefits. In the veteran's June 1980 VA Form 9, Substantive Appeal, he continued his disagreement with the termination of his TDIU benefits. He explained that he had no social or industrial activities. In July 1981, the Board characterized the issue before them as entitlement to TDIU. In the Actions Leading to Present Appellate Status, the Board clearly states that the appeal resulted from a decision by the RO which terminated the veteran's entitlement to TDIU benefits. However, the laws and regulations which apply to termination of TDIU benefits, 38 C.F.R. §§ 3.343, and 3.344 were not addressed at all by the Board. Since the Board clearly was aware of the position of the veteran that the claim he was asserting was termination of TDIU benefits, the issues of 38 C.F.R. §§ 3.343, and 3.344, had to be addressed. Pursuant to 38 C.F.R. § 3.343(c), at that time, reducing a rating of 100 percent service-connected disability based upon individual unemployability, the provisions of 38 C.F.R. § 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. "Clear and convincing" means that there is a "reasonable certainty of the truth of the fact in controversy." See Vanerson v. West, 12 Vet. App. 254 (1999). The 1981 Board decision addressed the issue of conflict as to whether the veteran was gainfully employed or not. The Board also indicated that it was of the opinion that the evidence did not show that the veteran's mental disorder was of such severity as to preclude employment. Unfortunately, 38 C.F.R. § 3.343(c) was not addressed in the 1981 Board decision and in determining that the veteran's mental disorder was not of such severity to preclude gainful employment, the Board shifted the burden from VA to the veteran. It was necessary that employability be established by "clear and convincing evidence" on the part of VA. Not only was 38 C.F.R. § 3.343(c) not addressed, the standard was not met in the evidence. The Board pointed to no clear and convincing evidence showing that the veteran was employable. Therefore, the statutory and regulatory provisions extant at the time were incorrectly applied and the Board's failure to meet the "clear and convincing" standard, required by 38 C.F.R. § 3.343(c), was CUE. Further, the provisions of 38 C.F.R. § 3.344 (a) were not addressed. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis for reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. In this instance, prior to terminating the veteran's TDIU, no examination was performed to determine if the veteran's TDIU should be terminated. The first VA examination performed in connection with the veteran's TDIU was in March 1980, more than a month after his benefits were terminated. Again, that examination was performed in connection with the issue of entitlement to TDIU benefits, and not in connection with the issue that the veteran appealed, which was termination of TDIU benefits. Failure to examine the veteran in connection with the termination of his TDIU benefits, since no evidence was presented demonstrating sustained improvement, was a failure to apply the regulatory provisions of 38 C.F.R. § 3.344(a), and as such, was CUE. The moving party's assertions of CUE are essentially based on VA's failure to correctly apply the statutory and regulatory provisions at the time of the Board's July 1981 decision. That has been shown. To warrant revision of the Board's decision, not only must there have been an error in the adjudication of the appeal, it must be shown that had the error not been made, it would have manifestly changed the outcome when it was made. In this regard, had the Board correctly adjudicated the issue of termination of TDIU benefits, and applied the regulations of 38 C.F.R. §§ 3.343 (c), 3.344(a) as required, the veteran's claim to determine if termination of TDIU benefits was proper, would have been found in his favor. Moreover, the outcome would have been manifestly different, and would have required VA to reinstate his TDIU benefits. At the least, shifting the burden to the veteran and the failure to provide the veteran with an examination to determine if there was improvement, would have required VA to place the veteran back in the position that he was in prior to terminating his benefits. The failure to apply 38 C.F.R. §§ 3.343 (c), 3.344(a), was so prejudicial that but for that error, the outcome would have been manifestly different. The result of this decision is that the moving party is entitled to reinstatement of his TDIU benefits from the date it was discontinued. Therefore, the motion for revision or reversal of the Board's July 8, 1981 decision based on CUE is warranted. ORDER The motion for reversal and revision of the July 8, 1981, decision of the Board which denied the veteran' TDIU benefits is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs