Citation Nr: 1237197 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-17 324 ) DATE ) ) THE ISSUE Whether a March 9, 1994 decision of the Board of Veterans' Appeals (Board), which did not adjudicate entitlement to a total disability rating due to individual unemployability (TDIU), should be revised or reversed on the grounds of clear and unmistakable error (CUE). ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from September 1976 to September 1980, and from December 1982 to October 1986. This matter comes before the Board on motion by the Veteran alleging CUE in a Board decision issued on March 9, 1994. By letter dated May 20, 2009, the Veteran was advised that his CUE motion was placed on the Board's docket, and that the rules relating to CUE motions could be found at 38 U.S.C.A. § 7111 and 38 C.F.R. §§ 20.1400-11. The procedural history of this case is complex. The Board denied the motion to revise in a September 2009 decision. The September 2009 decision identified three CUE allegations by the Veteran against a March 9, 1994 Board decision from the Veteran: (a) the denial of a schedular evaluation greater than 30 percent for a headache disorder was not proper; (b) the failure to refer the case for extraschedular consideration under 38 C.F.R. § 3.321(b) for a headache disorder was not proper; and (c) and failure to adjudicate the issue of TDIU was not proper. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). The Court issued a December 2011 memorandum decision in which the Board's 2009 decision was affirmed in part and vacated and remanded in part. The December 2011 Court decision affirmed the Board's decision as to the denial of a schedular evaluation greater than 30 percent for a headache disorder and the failure to refer the case for extraschedular consideration under 38 C.F.R. § 3.321(b) for the headache disorder CUE allegations. As the Court has specifically affirmed the Board's conclusions as to the first two allegations, these are no longer before the Board (the Board's reads the determination of the Court's decision as an affirmance of the Board's prior decision on those two issues within the CUE issue). The Court's determinations as to the failure to adjudicate the issue of TDIU are discussed below. The Veteran has submitted a November 2011 statement regarding his allegations of CUE with a set of evidence and a demand that the case be remanded to the Regional Office (RO) for further processing. To the extent to which the Veteran may be attempting to raise new allegations of CUE, the Board can not consider them. A claimant has only one opportunity to file CUE motion against a final Board decision. See Hillyard v. Shinseki, --- F.3d ---, No. 2011-7157 (Fed.Cir. Aug. 17, 2012); see also 38 U.S.C.A. § 7111 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1409(c) (2012). If he did not raise a particular CUE allegation in his original motion to revise, he is barred from doing so now. See Hillyard, slip op. at 3. As such, the Board will not consider any CUE allegation other than that returned by the Court to the Board. In this regard, it is also important to note that the Veteran's new allegations address primarily points (a) or (b), which have been affirmed by the Veteran's Court. Similarly, the evidence submitted is not reviewable at this juncture. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made (in this case, 1994). 38 C.F.R. § 20.1403(b). Furthermore, this case arises from the Board's original jurisdiction; stated another way, because no RO considered the motion in the first instance, no RO may consider a remand of this issue. See 38 C.F.R. § 20.1400 (2012). There is no basis in law to remand this case to the RO on any basis. Regional Offices do not address CUE motions of Board decisions. The Veteran's motion to remand this case to a RO is denied. The Veteran is also pursuing an increased rating for his service-connected headaches, which is presently on remand from the Board to the Appeals Management Center (AMC). That appeal does arise from a Regional Office decision and is separate from the present motion to revise. The Board will not address that appeal in this decision. FINDING OF FACT The March 9, 1994, Board decision did not explicitly or implicitly deny the issue of TDIU. CONCLUSION OF LAW The motion to revise the March 9, 1994, Board decision for failure to award TDIU is dismissed. 38 U.S.C.A. § 7111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.1400-1411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION CUE in a Prior Board Decision In an Informal Brief filed with the United States Court of Appeals for Veterans Claims (Court) in January 2008, the Veteran (moving party) filed a request for revision of a March 9, 1994, Board decision, which granted a 30 percent for service-connected headache disorder, but denied a higher rating still. A prior Board decision is final and binding, but is reversible, if there is CUE. 38 U.S.C.A. § 7111. A decision of the Board that revises a prior Board decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1406. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-11. A motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, 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. 38 C.F.R. § 20.1404(b). 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 pleading requirements, and must be dismissed. Id. The Board has original jurisdiction to determine whether CUE exists in a prior final Board decision. 38 C.F.R. § 20.1400. It is important for the Veteran to understand that CUE is defined as a very specific and rare 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. 38 C.F.R. § 20.1403(a). 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. Id. The above-cited regulatory authority was promulgated with the intent to adopt the CUE standard as set forth by the Court. See 63 Fed. Reg. 27534, 27536 (1998). The Board may, therefore, rely on the prior precedential decisions of the Court as to what exactly constitutes a valid claim of CUE. For CUE to exist, (1) "[e]ither the correct facts, as they were known at that 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 the time were incorrectly applied," (2) the error must be "undebatable" and 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 v. Brown, 6 Vet. App. 242, 245 (1994). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Additionally, CUE 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. § 20.1404(d). As mentioned, the Veteran has made a series of allegations regarding CUE in the March 1994 Board decision. The Board's September 2009 decision found that CUE had not been committed with regard to the denial of a rating in excess of 30 percent for headache disorder and the denial of referral for an extraschedular evaluation. The Court affirmed the September 2009 decision as to these allegations. At this time, only one CUE allegation remains before the Board: that the Board failed to award a claim of entitlement to TDIU. He specifically argues that he filed a claim for TDIU on December 17, 1987 and had met the threshold percentages for consideration of TDIU rating under 38 C.F.R. § 4.16(a) at the time of the Board's March 1994 decision. The Board notes that failure to adjudicate a claim cannot rise to the level of CUE in that failure to adjudicate is not outcome determinative. See Damrel; cf. Crippen v. Brown, 9 Vet. App. 412, 420 (1996)(where failure to reopen was not sufficient to plead CUE). The claim could be adjudicated and denied on the merits. Thus, the Board has modified the Veteran's motion to reflect an outcome determinative CUE pleading. Briefly summarized, the Board issued a decision on March 9, 1994 which specifically adjudicated a claim of entitlement to an increased rating in excess of 10 percent for a service-connected headache disorder. At the time of that decision, the Veteran held a combined 70 percent service-connected disability rating due to 1) residuals, low back injury with muscle weakness and decreased sensation, both lower extremities, rated as 60 percent disabling; 2) residuals of right arm injury (major), rated as 20 percent disabling; 3) headaches, rated as 10 percent disabling; 4) psoriasis, rated as 10 percent disabling; and 5) bilateral high frequency hearing loss, rated as noncompensable. In the March 1994 decision, the Board awarded a 30 percent rating for service-connected headache disorder under Diagnostic Code (DC) 8100, but denied a higher rating still. In 1994, the Board further found that the criteria had not been met for referral of the claim to the Director, Compensation and Pension Service under 38 C.F.R. § 3.321(b). Following the Board's grant of an increased rating, the Veteran's combined disability rating was 80 percent. The Veteran did not appeal to the Court at that time. The January 2012 Court decision found that the Board had clearly erred in the September 2009 decision by finding that entitlement to TDIU was not raised by record and conflating the issue of whether the issue was raised with the issue of whether TDIU was warranted, highlighting a December 17, 1987, statement and other evidence of record, particularly November 1987 and July 1989 VA examination reports. The Court returned this issue to the Board to determine: (1) when TDIU was raised; (2) whether it was raised by the Veteran or the evidence on more than one occasion; (3) whether it was "implicitly denied" on each occasion or through multiple decisions; and (4) whether a reasonable person should have been able to deduce that VA adjudicated and denied entitlement to TDIU based upon multiple service connected disabilities. In the same decision, the Court "reverse[d] the Board's finding that entitlement to TDIU was not raised by the appellant's 1987 statement and the record in 1994." Slip op. at 9. The Court's reversal requires the Board to find that TDIU was raised by the November 1987 and July 1989 VA examination reports and the Veteran's December 1987 statement. Although the Court has already made the determination, the Board will review the file again as this appears to be required by the Court decision. A veteran is not specifically required to plead a claim for TDIU, rather one may be inferred from the record where the veteran is pursuing a claim for the highest possible rating and submits evidence that he is not able to follow a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed.Cir. 2001). Moreover, VA is required to give a sympathetic reading to a pro se veteran's filings by determining all potential claims raised by the evidence applying all relevant law and regulations. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed.Cir. 2004). Where a veteran raises TDIU in the course of pursuing the highest possible rating for a disability, the date of claim for TDIU will be the same as the date of claim for the underlying service-connected disability rating claim. See Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). In this regard, it is important to note that all of the case law cited above did not exist in 1994, therefore, it would have not been possible for the Board to rely on this court precedent in order to find that TDIU had been raised by the record. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made (in this case, 1994). 38 C.F.R. § 20.1403(b). The evidence before the Board in March 1994 included the Veteran's service treatment records (STRs), VA clinical records, lay statements from the Veteran and his spouse, a November 1987 evaluation from Dr. H.S. Chuang for the Texas Rehabilitation Commission, Disability Determination Division, a September 1989 evaluation from Dr. A. Fernandes for the VA, and VA Compensation and Pension (C&P) examination reports dated September 1981, May 1987, May 1988, July 1989, and December 1991. The Veteran alleges and the Court has found that his December 17, 1987 statement constituted an informal TDIU claim. In that statement, the Veteran stated that "[b]ecause of my disabilities, I have been unable to get a job in over a year." The record also contains a March 1988 statement in which the Veteran reported that he had filed applications for over 260 positions that he thought he was both qualified and capable of performing. He indicated that he had received "a polite rejection for a variety of reasons" which he attributed to his mentioning of his disability and limitations. This appears to satisfy the Roberson test for raising TDIU as well. The Court also found that November 1987 and July 1989 VA examination reports contained statements which reasonably raised TDIU. The Court indicated that the November 1987 VA examination report states that the Veteran "certainly needs a lot of rehabilitation towards returning him back towards some form of gainful employment." The July 1989 VA examination report noted the Veteran's statement that he "ha[d] not worked since his discharge due to his [service-connected] back and headache problems" and that he was "currently supported by a 60% VA service-connected disability." The Board must clarify a factual error committed in the September 2009 decision in this case. The Board incorrectly identified the report stating that the Veteran "certainly needs a lot of rehabilitation towards returning him back towards some form of gainful employment." That report was, in fact, the September 1989 consultation examination report prepared by Dr. Fernandes. The November 1987 report was prepared by Dr. Chuang does not contain this language. Review of the remaining records do not show additional occasions on which the Veteran alleged, or the evidence raised, unemployability prior to the Board's March 1994 decision. As the motion before the Board is restricted to the March 1994 decision, any TDIU claim raised after March 1994 is not subject to consideration here. Having determined that the record raised TDIU in December 1987, March 1988 and July and September 1989, the Board must determine whether the issue was implicitly denied in any decision. Where a claim, including a reasonably raised claim under a sympathetic reading, is not acted upon by the agency decision maker, it may be deemed denied. Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). Once any applicable appeals period with regard to that "decision" has expired, a CUE claim must be made to establish benefits based on that claim. Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). A four part test is used to determine whether a case has been implicitly denied. Cogburn v. Shinseki, 24 Vet.App. 205 (2010). Four factors must be considered when determining whether a claim was implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether the claimant is represented by an attorney. Id. at 212-14. Due to the procedural complexity of this allegation of CUE, the Board must present a lengthy discussion of the Veteran's claims, beginning in 1986. This CUE motion is based entirely on Roberson and its progeny, a line of cases beginning fifteen years after VA began work on this claim. See Roberson, supra. The Board and RO were unable to utilizing any of the case law cited above in 1994, and prior to that time. The Veteran filed a November 1986 claim for benefits following his final discharge from service in October 1986. He alleged a worsening of a previously service-connected back disability and requested service connection for his hearing, a skin rash, headaches, loss of control of his right arm and loss of feeling in his legs. The increased rating for the back was granted, along with service connection for all claims except the loss of feeling his legs (characterized as paralysis in the legs by the RO) in an August 1987 rating decision. This decision did not address TDIU explicitly and, under review of the claims file, no claim for TDIU had been raised by the Veteran or the evidence of record at that time. The Veteran filed August and October 1987 Notices of Disagreement encompassing all the issues decided. The Veteran then filed the December 1987 and March 1988 statements disagreeing generally with his disability rating and indicating that he had been unable to find a job. The TDIU issue was an alternative theory of the Veteran's claim. In such cases, the date of claim is the same for both. See, e.g., Comer v. Peake, 552 F.3d 1362, 1369 (Fed.Cir. 2009). Under Cogburn, the TDIU issue is an alternative theory of entitlement, making the issues very related, the timing of the claims is identical and the adjudication covered all the service-connected disabilities and their present level of severity. Cogburn, at 214-17. Concerning the first three Cogburn elements, when VA assigns a disability rating that is less than 100 percent, the claimant is understood to have "received general notice of the denial of [his] TDIU claim[ ]" so that the VA decision regarding the TDIU claim is final and "CUE [i]s the only appropriate way to attack [VA's] decision"). Ingram v. Nicholson, 21 Vet. App. 232, 248-49 (2007). See also Deshotel, 457 F.3d at 1261 ("Where the veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied."). The Board notes that the factual scenario presented in this case is materially similar to that presented in the case of Roberson. The Board concludes that the August 1987 rating decision denied the TDIU issue implicitly. The Board finds further that the Veteran's August and October 1987 Notices of Disagreement and his December 1987 statement placed the TDIU issue in appellate status under current case law. See, e.g., Comer, supra. The Veteran perfected his appeal of the explicitly considered claims in 1988. He later withdrew the hearing loss compensation appeal in a December 1988 statement. The Board addressed all but one of the Veteran's service-connected disabilities as well as the claim for service connection for paralysis in both legs in a pair of May 1989 decisions. The Board denied an increased rating for the service-connected headache disability, granted a compensable rating for psoriasis, and remanded the appeals for increased ratings for right arm and low back disabilities and service connection for paralysis of the legs. The Board divided the claims into two decisions according to the different substantive appeals by which the Board's jurisdiction was perfected. The Board's ordinary practice in situations where TDIU is on appeal with the schedular or extraschedular ratings for the underlying disabilities is to remand TDIU if the schedular or extraschedular ratings require remand. The foundation for this practice is the schedular ratings requirement for TDIU under 38 C.F.R. § 4.16(a). At the time of the May 1989 Board decisions, the Veteran's combined rating was 50 percent without consideration of the increased rating awarded by the Board. As the increased rating would alter the basis on which to consider the schedular TDIU, the Board would have remanded the TDIU, rather than proceed to a decision at that time. Furthermore, the Veteran's TDIU allegation was that his disabilities, together prevented him from finding a job, such that adjudication of two, but not all four ratings on appeal, would not reasonably inform him that TDIU was denied. See Cogburn. The Board returned the right arm and low back ratings and service connection for paralysis of the legs to the RO in May 1989. The RO implemented the Board's grant of an increased rating for psoriasis in June 1989. The Veteran then filed a July 1989 statement which, among other things, argued that he should receive a higher rating for his headache disability. The Veteran was then evaluated at the July and September 1989 evaluations where his employability was discussed, as described above. The RO issued a December 1989 rating in which his right arm disability rating was increased to 20 percent, service connection for neurological complications in his legs was awarded and the neurological disability was incorporated into his low back disability rating which was increased to 60 percent. The RO also continued the rating for the headache disability. Again, unaware of case law that had yet to be formulated, the RO did not realize that TDIU was either on appeal or that it should be sent to the Board for resolution. The Veteran perfected an appeal of the new headache disability rating claim from the December 1989 rating decision. The Board remanded that appeal in June 1993 and decided the appeal in March 1994, awarding an increased rating of 30 percent. The Board did not address the issues remanded in May 1989 further. The Board concludes that the TDIU issue was not implicitly denied in the March 1994 Board decision. The Board did not address TDIU and instead bifurcated the increased ratings appeals in May 1989. Due to bifurcation of his ratings appeals, the Veteran would not have been reasonably aware that TDIU was denied at that time. The Board finds that the 1989 Board decision did not implicitly deny the TDIU issue. The June 1993 Board decision was a remand and no denial, explicit or implicit, may be found there. The March 1994 Board decision was a partial repeat of the May 1989 decision, considering the headache rating again. Having once bifurcated the Veteran's appeal, the Board cannot conclude that a second decision on the previously decided portion of an appeal constitutes a decision on the previously remanded portion of an appeal where nothing indicates reunion of the separated issues. See, e.g., Locklear v. Shinseki, 24 Vet.App. 311, 316-18 (2011). Because TDIU was not denied in the March 1994 Board decision, a CUE motion may not lie as to that issue in that decision, even if the Board applies case law that the Board could not have addressed in 1994. The Board must dismiss the CUE motion as to the March 1994 Board decision as it did not issue a final decision on the issue challenged. See 38 C.F.R. §§ 20.1400, 20.1401(a). The December 2011 Court decision instructs the Board to ascertain what decision may be the subject of a CUE motion as to the matter of a TDIU rating prior to June 1997. The Board has determined that the 1989, 1993 and 1994 Board actions are not denials of TDIU although there was an appeal as to the issue. In this case, based on the facts above, the RO cannot extinguish an appeal except by grant of the benefit sought. Simply stated, based on the finding of the Court in this case, and the application of current case law, the original 1987 rating decision was appealed to the Board which prevented finality from attaching. The 1989, 1992, 1994, and 1996 rating decisions did not terminate the appeal. The Veteran's TDIU appeal was terminated through the grant of the benefits sought in the January 1998 rating decision. That rating decision also assigned the relevant effective date. The Veteran was provided notice of his procedural and appellate rights in January 1998. The Veteran filed a Notice of Disagreement as to two other issues, not as to the effective date of TDIU. The Board concludes that the January 1998 rating decision is final as to the effective date of TDIU. The Board lacks jurisdiction to review on the merits a request for revision of a rating decision on the basis of CUE which was not presented or adjudicated by the RO but which was presented first to the Board. See Jarrell v. Nicholson, 20 Vet.App. 326, 332 (2006). If the Veteran wishes to establish an earlier effective date for TDIU based on a motion to revise the January 1998 rating decision based on CUE, he is free to do so. Jurisdiction for such a motion lies with the RO and not with the Board as this was an RO rating action. See 38 U.S.C.A. § 5109A (West 2002 & Supp. 2011). Duties to Notify and Assist A motion for revision based on CUE must be based on the record and law that existed at the time of the prior adjudication in question. The duties to notify and assist, therefore, not applicable in CUE claims. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). ORDER The motion to revise the March 9, 1994, Board decision on the basis of CUE for failure to award TDIU is dismissed. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs