Citation Nr: 1233564 Decision Date: 09/27/12 Archive Date: 10/09/12 DOCKET NO. 09-12 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Propriety of a May 2008 RO rating decision, which revised the effective date of award for a permanent and total disability rating from January 5, 1998 to September 10, 2007 on the basis that an October 2007 RO rating decision was the product of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969, and from August 1970 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the RO in Togus, Maine. In that decision, the RO determined that an October 2007 RO rating decision, which awarded an effective date of January 5, 1998 for a permanent and total disability rating for service-connected posttraumatic stress disorder (PTSD), was the product of CUE. As a result, the RO revised the effective date of award for a permanent and total disability rating to September 10, 2007. The Veteran has appealed this determination. The Board observes that the RO issued a Statement of the Case (SOC) in February 2009 which listed additional issues as to whether the March 1998 RO rating decision was the product of CUE for failing to grant Dependents' Educational Assistance (DEA) under Chapter 35, and entitlement to an effective date prior to September 10, 2007 for the grant of eligibility for DEA benefits. These issues were not specifically addressed in an original RO rating decision and, technically, are not on appeal to the Board. However, the Board recognizes that the ancillary issues of entitlement to DEA benefits for an earlier date in time is essentially a downstream element with respect to the ultimate decision addressed by the Board in this decision. As discussed below, the issue of entitlement to DEA benefits, or any other ancillary benefits which may be raised by awarding an earlier effective date for a permanent and total disability rating, is not currently before the Board as the RO will necessarily have to make an initial adjudicative determination as to the benefits being sought by the Veteran. Given the Board's determination below, the Board moreover finds that these particular issues are moot. As such, the Board's jurisdiction is limited to the question as to whether the RO's May 2008 revision of the effective date of award for a permanent and total disability rating is the product of CUE. Nonetheless, the Board refers to the RO the issue of entitlement to DEA benefits for the time period prior to September 10, 2007 for initial adjudication. The Veteran has also raised additional issues regarding his entitlement to CHAMPVA benefits and reimbursement of hospitalization expenses in May 2007 intertwined with the effective date of award for a permanent and total disability rating which are also referred to the RO for appropriate action. See Representative Statement dated January 17, 2008. FINDINGS OF FACT 1. A final March 1998 RO rating decision, which continued a 100 percent schedular rating for PTSD, did not explicitly deny the Veteran an award of a permanent and total disability rating. 2. The RO's factual and legal determination in the October 2007 rating decision that the issue of entitlement to a permanent and total disability rating for service-connected PTSD had been reasonably raised at the time of the March 1998 rating decision, had not been finally decided in the March 1998 rating decision, and had been pending since January 5, 1998 is not undebatably erroneous. 3. The RO's factual determination in the October 2007 rating decision that the Veteran met the requirements for a permanent and total disability rating as of January 5, 1998, is not undebatably erroneous. 4. The RO's October 2007 RO rating decision, which awarded an effective date of January 5, 1998 for the award of a permanent and total disability rating for service-connected PTSD, was not the product of CUE. CONCLUSION OF LAW The criteria for reversal of the May 2008 RO rating decision on the basis of CUE, which revised the effective date of award for a permanent and total disability rating from January 5, 1998 to September 10, 2007 on the basis that an October 2007 rating decision was the product of CUE, have been met; an effective date of January 5, 1998 for a permanent and total disability rating is restored. 38 U.S.C.A. §§ 5109A (West 2002); 38 C.F.R. §§ 3.104(a), 3.105 (2011); 38 C.F.R. §§ 3.327, 3.340 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that an RO rating decision in October 2007, which awarded an effective date of January 5, 1998 for a permanent and total disability rating for service-connected PTSD, was based upon a correct application of the law and facts known of record at that time. He alleges that a subsequent May 2008 RO rating decision contained error in finding that the October 2007 rating decision was the product of CUE and should be revised or reversed to the extent it denied an effective date prior to September 10, 2007 for the award of a permanent and total disability rating. Notably, the Veteran argues that the revision of the effective date of award for a permanent and total disability rating has resulted in prejudicial harm by denying him entitlement to ancillary benefits which stem from an award of a permanent and total disability rating, such as entitlement to DEA benefits and CHAMPVA benefits. See 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. §§ 3.807(a), 21.3021 (basic eligibility for DEA exists if a veteran has a permanent total service-connected disability). These actions have been referred to the RO for appropriate action and initial adjudication. Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of a duly constituted rating agency... shall be final and binding...based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C.A. § 5108. An exception to this rule is when the VA has made CUE in its decision pursuant to 38 C.F.R. § 3.105. See 38 U.S.C.A. § 5109A (an RO decision is subject to revision or reversal on the grounds of CUE). Under 38 C.F.R. § 3.105(a), VA must reverse or amend a prior decision "[w]here evidence establishes [CUE]." The United States Court of Appeals for Veterans Claims (Court) defines a determination of CUE in a prior adjudication to mean that: (1) "[e]ither 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," (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 the law that existed at the time of the prior ... decision." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). "In order for there to be a valid claim of [CUE], . . . [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Id.; see also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not CUE. Id. See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that each CUE allegation for an RO rating decision is a separate claim for VA adjudication purposes. Andre v. Principi, 301 F.3d 1354, 1361-62 (Fed. Cir. 2002). Historically, a May 1986 RO rating decision awarded service connection for PTSD, and assigned an initial 50 percent rating effective October 23, 1985. This rating determination was upheld by a final Board decision dated January 1988. In pertinent part, on March 7, 1989, the Veteran filed a claim for an increased rating for PTSD. An October 1994 Board decision awarded a 100 percent schedular rating for PTSD based upon the following analysis: It is clear that the [V]eteran's PTSD symptoms during the past several years have deteriorated severely. His social isolation and mistrust of others have continued, but it appears from the record that he has had increasing episodes of loss of touch with reality during flashbacks and alcoholic blackouts, accompanied by psychotic symptoms and behavior. It has been stated by two VA psychiatrists on multiple occasions during the last few years that he is unemployable due to his psychiatric symptomatology; there is no evidence of record that any physician has recently indicated that he is employable. In addition, the report of the most recent VA examination relates that during the episodes when the [V]eteran loses touch with reality and during his episodes of uncontrollable rage, he becomes a danger both to himself and to society. Such manifestations of the [V]eteran's PTSD, in the Board's view, clearly meet all three of the criteria for a 100 percent schedular evaluation for his PTSD, although meeting only one of three is required for the assignment of a 100 percent rating. Since there is no evidence to the contrary, the provisions of 38 U.S.C.A. § 5107 are not for application. The preponderance of the evidence is in favor of the [V]eteran's claim, and an increased rating to 100 percent is warranted. A November 1994 RO rating decision effectuated the Board's award of a 100 percent schedular rating for PTSD effective March 7, 1989. The RO's rating decision also included the following determination: BASIC ELIGIBILITY TO BENEFITS UNDER 38 U.S.C. CHAPTER 35 IS NOT ESTABLISHED. (emphasis original). By letter dated December 6, 1994, the RO advised the Veteran of the November 1994 determination, provided him a copy of the November 1994 rating determination, and advised him of his appellate rights. The Veteran did not appeal this decision, and it became final as to the effective date of award assigned for the 100 percent rating for PTSD and the explicit denial of Chapter 35 benefits. 38 C.F.R. § 20.302 (1994). See generally Rudd v. Nicholson, 20 Vet. App. 296 (2006). In January 1998, the Veteran underwent a periodic examination for PTSD. The VA PTSD examiner summarized the examination findings as follows: IMPRESSION: The [V]eteran suffers from post traumatic stress disorder that has led to severe social impairment in the past with some improvement to a level that is still considerable improvement. He has had total industrial impairment but seems to feel at this point in time that he has been able to do some volunteer work and that has gone quite well. He would like to get involved in some vocational rehab and retraining. The [V]eteran is in need of medication. In the past there has been decreased work efficiency related to a combination of PTSD and substance abuse. There seems to be evidence of panicky type anxiety but no clear cut panic disorder. There are degrees of dissociative memory loss. He is able to perform his [activities of daily living]. He still has some degree of difficulty in coping with stress. A March 1998 RO rating decision continued the 100 percent rating for PTSD. In the jurisdiction section, it was noted that a routine future examination dated January 5, 1998 had been received. Another section, which consisted of an RO coding table, included a box entitled "FUTURE EXAM" which indicated "1199." By letter dated March 13, 1998, the RO advised the Veteran of the March 1998 determination that the RO confirmed its prior decision to deny his claim for PTSD. At that time, the RO provided the Veteran a copy of the March 1998 rating determination, and advised him of his appellate rights. The Veteran did not appeal this decision, or submit new and material evidence, within one year of the date of notice. Therefore, the March 1998 decision became final. 38 C.F.R. §§ 3.156(b), 20.302 (1997). On September 10, 2007, the Veteran underwent an additional VA reexamination as a result of a routine future examination. This examination report indicated that the Veteran had not been able to engage in competitive employment for years, and continued to have long-standing social isolation. By means of a rating decision dated September 2007, the RO continued the 100 percent rating for PTSD and awarded the Veteran entitlement to DEA benefits effective September 10, 2007. This was predicated on a finding of entitlement to a permanent and total disability evaluation. See 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. §§ 3.807(a), 21.3021. However, the RO subsequently issued another rating decision on October 17, 2007 which awarded the Veteran an effective date of January 5, 1998 for a permanent and total disability rating. The record does not reflect the circumstances leading to this readjudication. Notably, however, the October 2007 rating decision was promulgated by the same rating specialist who awarded the initial effective date of award in September 2007. In so doing, the RO provided the following justification: Entitlement to an earlier effective date for the granting of a permanent and total rating is granted effective January 5, 1998. A review of the record reveals VA rating decision of March 13, 1998, confirmed and continued the 100 percent disability rating assigned for your service connected posttraumatic stress disorder. This rating confirmed the 100 percent rating, because the finding reported during the VA examination of January 5, 1998, which continued to show your service connected posttraumatic stress disorder resulted in total occupational impairment. This decision did not address entitlement to a permanent and total rating. We have granted an effective date of January 5, 1998, for the granting of a permanent and total rating, because this is the date the evidence showed your psychiatric condition was likely to result in a permanent and total occupational impairment. The VA Rating Decision of March 13, 1998, failed to address entitlement to a permanent and total rating. Furthermore, at the time of this decision your 100 percent disability rating had been in effect for approximately 9 years and you were approximately 54 years old. Therefore, it is determined that the evidence of record at the time of the decision established your psychiatric impairment was likely to continue throughout the rem[a]inder of your life and a permanent and total rating should have been granted. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled veteran. In service connected cases, no periodic examination will be scheduled. When the disability is established static: When the findings and symptoms are shown by examinations and hospital reports to have persisted without material improvement for a period of 5 years of more: Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement: When the rating is a prescribed scheduled minimum rating: or Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions. Notably, the October 17, 2007 RO rating decision was not signed by the rating official. Nonetheless, an October 19, 2007 RO letter sent to the Veteran advised him that an effective date of January 5, 1998, had been established for the granting of a permanent and total rating. Thereafter, in January 2008, the Veteran submitted a motion for equitable relief for ancillary benefits he believed he was entitled to as a result of the award of a January 5, 1998, effective date for a permanent and total rating. In response, the Director of Compensation and Pension (C&P) Service issued a February 2008 memorandum denying the request for equitable relief. In pertinent part, the memorandum reasoned as follows: The October 17, 2007, rating improperly retroactively established permanency of the 100 percent evaluation assigned the [V]eteran's service connected post-traumatic stress disorder effective January 5, 1998. If the October 17, 2007, rating is intended to correct a clear and unmistakable error in the March 10, 1998, rating, then review and approval by the Veteran's Service Center Manager is required. The March 10, 1998, rating clearly shows a future examination was scheduled for November 1999. On March 13, 1998, the [V]eteran was notified of the decision and of his due process and procedural rights, including his right to file a notice of disagreement; a copy of the March 10, 1998, rating was enclosed. No notice of disagreement was filed by the [V]eteran within the one-year appellate period. 38 C.F.R. § 3.104(a) provides that a decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file. The September 17, 2007, rating established permanency of the 100 percent evaluation assigned SC PTSD effective September 10, 2007, the date of the review examination. Corrective action must now be taken to either (1) re-establish September 10, 2007, as the effective date from which permanency of the 100 evaluation or (2) hold the March 10, 1998, and September 17, 2007, ratings to be clearly and unmistakably erroneous as to the effective date of permanency assigned the SC PTSD. Thereafter, the RO issued a May 2008 rating decision which found that the October 2007 RO rating decision contained CUE in awarding an effective date of January 5, 1998 for the permanent and total disability rating. In pertinent part, the RO rating decision reasoned as follows: The VA Rating Decision of October 19, 2007, was clearly and unmistakably erroneous in granting an effective date of January 5, 1998, for the awarding of a permanent and total rating. The correct effective date for the granting of the permanent and total rating is September 10, 2007. A review of the record reveals VA Rating Decision of March 13, 1998, confirmed and continued the 100 percent disability rating assigned for your service-connected posttraumatic stress disorder. The 100 percent rating was continued, because the finding reported during the VA examination continued to show your psychiatric disorder resulted in a total social and occupational impairment. This decision did not address the issue of entitlement to a permanent and total rating. However, the rating did schedule a routine future examination. VA Rating Decision of September 23, 2007, granted entitlement to a permanent and total rating. The permanent and total rating was granted based on VA examination results of September 10, 2007, which showed your psychiatric disorder resulted in permanent and total social and occupational impairment. This decision assigned an effective date of September 10, 2007, date the evidence showed your psychiatric disorder resulted in permanent and total disability, for the granting of a permanent and total rating. Subsequently, VA Rating Decision of October 19, 2007, established an earlier effective date of January 5, 1998, for the granting of permanent and total rating. This decision assigned an earlier effective date, because it was determined that the evidence of record at the time of the March 13, 1998, VA Rating Decision, showed it was unlikely your disability would improve. Initially it is determined the October 19, 2007, VA Rating Decision was clearly and unmistakably erroneous in assigning an effective date of January 5, 1998, for the granting of a permanent and total disability rating. Specifically, the decision maker did not have the legal authority to assign and [sic] effective date of January 5, 1998, in the absence of clear and unmistakable error in the March 13, 1998, decision. ... In reviewing the March 13, 1998, decision it is noted the issue of entitlement to a permanent and total rating was not addressed which was incorrect. However, a routine future examination was scheduled and this is a judgment call by the rating activity and does not rise to the legal standard of clear and unmistakable error. Meaning the evidence of record at the time of the March 13, 1998, VA Rating Decision did not clearly and undoubtedly establish your condition resulted in permanent and total disability and that a routine future examination should not have been scheduled. Therefore, the correct effective date for the granting of the permanent and total rating is September 10, 2007, the date the evidence shows your psychiatric disorder resulted in permanent and total disability. The law extant in March 1998 provided, in pertinent part, the following criteria for establishing total and permanent ratings and unemployability: (a) Total disability ratings-- (1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. (2) Schedule for rating disabilities. Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met. (3) Ratings of total disability on history. In the case of disabilities which have undergone some recent improvement, a rating of total disability may be made, provided: (i) That the disability must in the past have been of sufficient severity to warrant a total disability rating; (ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and (iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation. (b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340 (1997). The law extant in March 1998 also instructed that rating agencies were to handle cases affected by changes in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the VA laws and regulations. 38 C.F.R. § 3.344 (1997). When a disability had not become stabilized or was likely to improve, re-examination, and, if necessary, reevaluation of the assigned disability rating was warranted. Id. Reexamination was to be requested whenever VA determined that there was a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a) (1997). Generally, reexaminations were required if it was likely that a disability had improved, if the evidence indicated that there had been a material change in a disability, or if the current rating may be incorrect. Id. Following the initial VA examination or other scheduled examination, any reexamination determined to be in order was to be scheduled within not less than two years and not more than five years. 38 C.F.R. § 3.327(b). No periodic future examinations was to be requested where: 1) the disability was established as static, 2) the findings and symptoms were shown by examination to have persisted without material improvement for a period of 5 years or more, 3) the disability from disease was permanent in character and of such nature that there is no likelihood of improvement, 4) the Veteran was over 55 years of age, except under unusual circumstances, 5) the rating was a prescribed scheduled minimum rating, or 6) a combined disability rating evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions. 38 C.F.R. § 3.327(b) (1997). However, the regulation stated that the provisions of 38 C.F.R. § 3.327(b) were "guidelines" for requesting reexaminations which were not to be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that disabilities were accurately rated. 38 C.F.R. § 3.327(a) (1997). In general, factors which could be considered for determining total and permanent disability included failure to pursue treatment, and whether the disease had been shown to be of longstanding duration, actually totally incapacitating, or of such a nature as to render the probability of permanent improvement remote. See KL v. Brown, 5 Vet. App. 205, 208 (1993). Permanence was deemed a medical question, which required competent medical evidence; neither the Board nor the RO may exercise its own independent medical judgment on such a question. See Elcyzyn v. Brown, 7 Vet. App. 170, 176 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Additionally, the Veteran was presumed to have been seeking the maximum available benefits under the law. See AB v. Brown, 6 Vet. App. 35 (1993). However, in March 1998, the law did not contain clear directions from the Court, VA statutes, or VA regulations regarding the extent of VA's duty in maximizing potential benefits, when claims could be deemed reasonably raised, and when issues not addressed in a rating decision could be deemed an implicit denial of benefits. See generally Buie v. Shinseki, 24 Vet. App. 242 (2010) (VA has a duty to maximize benefits which requires an assessment all of potential means to provide a higher rating for service-connected disability); Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (holding that, once a claimant submits evidence of medical disability makes a claim for highest possible rating, and submits evidence of unemployability, an informal claim a total disability rating based upon unemployability (TDIU) is raised under 38 CFR 3.155(a)); Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010) (holding that RO rating decisions may include implicit denials of claims not specifically discussed in an RO rating decision). At the outset, the C&P Memorandum and the RO's May 2008 rating decision appear to refer to the RO's October 2007 rating decision as being invalid for failure to follow internal rating promulgation policies. In particular, it has been noted that the October 2007 "CUE" determination was not approved by a Veterans Service Center Manager. Assuming that the October 2007 RO rating decision was actually a CUE determination (which, as discussed below, the Board determines was not a CUE adjudication), the Board finds that the lack of compliance with internal rating policies cannot void the authenticity and authority of the October 2007 rating decision. In this respect, the Veteran received a decisional document directly from the agency of original jurisdiction in accordance with 38 U.S.C.A. § 5104(a). As such, the October 2007 RO rating decision will be deemed a valid rating activity. Sellers v. Shinseki, 25 Vet. App. 265 (2012) (holding that VA was bound by an RO rating decision that was issued despite the possibility that additional internal review policies and authorizations were required by VA policies). Notably, the May 2008 RO rating decision held that the October 2007 RO rating decision was the product of CUE, which implies that the validity of the October 2007 rating action was accepted at that time. The May 2008 decision and the C&P Memorandum essentially have found CUE in the October 2007 rating decision on the premise that the October 2007 rating specialist had an insufficient basis to overturn a final RO determination in March 1998 that the Veteran was not entitled to a permanent and total disability evaluation. This presumes that a final decision on the permanent and total disability evaluation had been made. On the other hand, the October 2007 RO rating decision at issue made an explicit determination that the March 1998 rating decision "did not address entitlement to a permanent and total rating." The RO then went on to analyze whether there was a factual basis in the record to establish a permanent and total disability rating effective January 5, 1998. The October 2007 rating specialist concluded that a factual basis in fact existed to award a permanent and total disability rating effective January 5, 1998. The RO made no reference to overturning any particular finding on the basis of CUE. To the contrary, the import of the October 2007 RO rating decision is that it was addressing a non-adjudicated claim pending since January 5, 1998. There can be no CUE finding absent a final and binding decision. 38 C.F.R. § 3.104. See Norris v. West, 12 Vet. App. 413, 419-22 (1999) (RO failure to adjudicate an informally raised claim did not constitute a final disallowance of the claim and, therefore, there was no final adverse decision subject to CUE attack). On this record, the Board cannot conclude that the RO committed CUE error in the October 2007 rating decision which awarded an effective date of January 5, 1998 for a permanent and total disability rating. Important for this decision, the Board interprets the October 2007 RO rating decision as making a factual determination that the issue of entitlement to a permanent and total disability rating had been reasonably raised by the record at the time of the March 1998 rating decision, had not been explicitly or implicitly denied by the March 1998 rating decision and, therefore, had been pending adjudication at the time of the October 2007 rating decision. This is an issue not specifically addressed in the C&P Memorandum or the May 2008 RO rating decision which overturned the October 2007 rating decision. A review of the March 1998 rating decision and award letter does not explicitly state that the issue of entitlement to a permanent and total disability rating had been adjudicated. Additionally, the Board cannot conclude that it is undebatable that the March 1998 rating decision's reference to a future examination being scheduled, in and of itself, factually placed the Veteran on notice that an award of a permanent and total disability evaluation had been made. Notably, this "advisement" was contained in a small coding table box - the significance which might have been unclear to the Veteran. By comparison, a previous November 1994 RO rating decision included a specific advisement that Chapter 35 benefits were not established, which placed the Veteran on notice that a permanent and total disability rating was denied at that time. See 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. §§ 3.807(a), 21.3021. Thus, the RO in October 2007 had a sufficient factual basis to support a conclusion that an explicit denial of a permanent and total rating had not been denied in the March 1998 RO decision. The Board also cannot conclude that it is undebatable that the March 1998 rating decision implicitly denied an award of a permanent and total service-connected disability rating. Again, the only potential advisement to a denial of a permanent and total disability rating was the reference to a future examination being scheduled in a small coding table box. On this record, it is clear that the October 2007 rating specialist found that a claim for a permanent and total disability rating had been raised and pending since March 1998. Important for this case, the Board finds no binding caselaw precedent at the time of the October 2007 RO rating decision (or now) which addresses whether a permanent and total disability rating is the type of benefit which can be reasonably raised by the record. Thus, the Board cannot conclude that the October 2007 RO rating decision involved legal error by considering whether a claim of permanent and total disability rating under 38 C.F.R. § 3.340(b) had been reasonably raised at the time of the March 1998 rating decision. The Board also cannot conclude that the October 2007 RO rating decision contained factual error in finding that a claim of permanent and total disability under 38 C.F.R. § 3.340(b) had been pending, and not finally denied, at the time of the March 1998 RO rating decision. This is a factual determination based upon multiple factors according to current law. See Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010) (citing four factors for an implicit denial determination as follows: (1) the specificity of the claims or relatedness of the claims, i.e., is the claimant seeking benefits "for a generalized set of symptoms, a specifically diagnosed disorder, or two (or more) specifically diagnosed disorders that are closely related"; (2) "the specificity of the adjudication, i.e., does the adjudication allude to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "timing of the claims"; and (4) "whether the claimant is represented.") Overall, the Board concludes that the October 2007 RO rating decision awarded an effective date of January 5, 1998 on the premise that a claim of permanent and total disability rating under 38 C.F.R. § 3.340(b) had been raised at the time of the March 1998 rating decision, but not finally decided. There is ample factual information of record to support a factual and legal conclusion that the Veteran was not properly notified of an explicit or implicit denial of this benefit. See Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009) (holding that the implicit denial rule "is, at bottom, a notice provision.") The RO in October 2007 also had an ample factual basis to conclude that the requirements for a permanent and total disability rating had been met as of January 5, 1998. The Board also observes that the May 2008 rating decision did not address the significance, if any, of the binding effect of the effective date of award originally assigned in the September 2007 RO rating decision. See generally 38 C.F.R. § 3.104(a). As noted above, the same rating specialist decided the September 2007 and October 2007 rating decisions. The jurisdiction section in the October 2007 rating states "Special Determination Requested 10/17/2007" and the cover letter to the October 2007 rating decision states that a "special review" of the claims folder was conducted. The May 2008 RO rating decision did not provide any reasons or bases discussion as to why the October 2007 rating decision contained CUE with respect to the September 2007 rating decision. Thus, the significance, if any, of this issue is not presented to the Board. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000) (the moving party has the burden to initiate a CUE motion to collaterally attack a final decision by an RO or the Board). As the Board does not find CUE in the October 2007 RO rating decision, the Board must find that the RO's May 2008 rating decision, which revised the effective date of award for a permanent and total disability rating from January 5, 1998 to September 10, 2007, is not a proper determination and should be reversed in its entirety. As such, the appeal is granted, with an award of a permanent and total disability rating effective January 5, 1998. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER The May 2008 RO rating decision, which revised the effective date of award for a permanent and total disability rating from January 5, 1998 to September 10, 2007 on the basis that an October 2007 rating decision was the CUE, is reversed; an effective date of January 5, 1998 for the award of a permanent and total disability rating is restored. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs