Citation Nr: 1306555	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO. 06-07 738	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

3. Whether there was clear and unmistakable error (CUE) in a November 1, 1977 rating decision which terminated TDIU benefits.


REPRESENTATION

Appellant represented by:	Robert Chisholm, Attorney


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel

INTRODUCTION

The Veteran served on active duty from April 1968 to July 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. 

In November 2005, the RO granted service connection for PTSD and assigned a 10 percent rating effective April 21, 2005. The Veteran appealed the assigned disability rating to the Board, which denied the Veteran's appeal in March 2009. The Veteran appealed that denial to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated the Board's decision and remanded the case to the Board for compliance with the JMR. 

In December 2010, the Board granted an initial disability rating of 30 percent for PTSD. The Veteran again filed an appeal with the Court, and the case was remanded to the Board in November 2011 pursuant to JMR, because the Board did not adequately address the Veteran's alcohol abuse as it related to his PTSD. The matter was remanded so that the Board may consider the Veteran's alcohol abuse in the context of his claim for an increased rating for PTSD, or as a newly raised claim for service connection for alcohol abuse as secondary to PTSD. 

In this case, the latter option will be exercised. The issue of entitlement to service connection for alcohol abuse as secondary to service-connected PTSD has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.

The RO also denied entitlement to a TDIU in a December 2010 rating decision. In a December 2011 rating decision, the RO found that a November 1, 1977 decision which terminated entitlement to a TDIU was not clearly and unmistakably erroneous. The Veteran perfected appeals of both rating decisions.

The Veteran's Virtual VA file was also reviewed as part of his appeal.

The issues of entitlement to an increased initial rating for PTSD and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO.

FINDINGS OF FACT

1. In a November 1, 1977 rating decision, the RO terminated TDIU benefits; an appeal to that decision was not initiated.

2. The November 1977 rating decision was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision.


CONCLUSION OF LAW

The criteria for revision or reversal of the November 1, 1977 rating decision on the basis of CUE have not been met. 38 C.F.R. § 3.105 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran has alleged CUE in a November 1, 1977 rating decision, wherein the RO terminated the Veteran's TDIU benefits. The Veteran did not appeal that decision and it became final. See 38 U.S.C.A. § 7105. This rating decision may be revised only upon a showing that it was clearly and unmistakably erroneous. See 38 U.S.C.A. §§ 5108, 5109A; 38 C.F.R. §§ 3.104, 3.105, 3.156(a); Manio v. Derwinski, 1 Vet. App. 140 (1991).

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 a clear and unmistakable error in its decision pursuant to 38 C.F.R. § 3.105. See also 38 U.S.C.A. § 210(c), 7103.

Under 38 C.F.R. § 3.105(a), a prior decision must be reversed or amended where evidence establishes CUE.

CUE is determined by three criteria: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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 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 law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242 (1994); see Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (to prove the existence of CUE as set forth in 38 C.F.R. § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision).

It has been held that CUE 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).

The Courts have held that CUE is not a mere allegation of an unspecified error. A disagreement with how facts were evaluated is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A claim of clear and unmistakable error is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). There is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on clear and unmistakable error has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). See Berger v. Brown, 10 Vet.App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion before the Court in a claim of clear and unmistakable error).

A failure in the duty to assist does not establish CUE. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In Cook, the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that a purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. In other words, to present a valid claim of CUE, the claimant cannot simply request that VA reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). Similarly, the fact that medical knowledge was not advanced to its current state may not form the basis for a valid claim of CUE, because it is premised upon facts that were not then of record. Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). 

The error must be one that would have manifestly changed the outcome at the time it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). Further, such a determination must be based on the record and the law that existed at the time of that rating decision. Eddy v. Brown, 9 Vet. App. 52 (1996). Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). 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. Id.



In November 1977, the evidence consisted of an October 1977 VA Form 21-4140 employment questionnaire. Through this form, the Veteran reported that he had been working with Buckland Construction since March 1977, earning $4.50 per hour.

The Veteran argues that the RO failed to comply with 38 C.F.R. § 3.343 and 38 C.F.R. § 3.105. See May 2011 statement.

As to the latter, the law provided that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a 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. 38 C.F.R. § 3.105(e) (1977).

As to the former, the law provided that total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. 38 C.F.R. § 3.343(a) (1977). 

In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of 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. When in such case the veteran is undergoing vocational rehabilitation, education, or training, the rating will not be reduced by reason thereof unless there is received evidence of marked improvement in physical or mental condition or of employment progression, income earned, and prospects of economic rehabilitation, which demonstrates affirmatively the veteran's capacity to pursue the vocation or occupation for which the training is intended to qualify him (or her), or unless the physical or mental demands of the course are obviously incompatible with total disability. 38 C.F.R. § 3.343(c) (1977).
The Veteran's assertion of CUE is without merit, and his appeal will be denied. 
First, the plain language of 38 C.F.R. § 3.343(a) clearly states that a medical examination is required only in cases where the total disability rating to be reduced is based on the severity of the condition. A medical examination is not required in cases of TDIU. Therefore, although the RO did not provide an examination prior to terminating the Veteran's TDIU benefits, this did not violate 38 C.F.R. § 3.343(a).

Second, the provisions of 38 C.F.R. § 3.343(c) require that actual employability be established by clear and convincing evidence. Here, the Veteran himself reported working at a construction company for 7 months at the time he completed the employment questionnaire. This evidence demonstrated actual sustained employment. Therefore, it cannot be found that the Veteran's unemployability was "undebateable." The record does not show that the Veteran was engaged in any type of vocational rehabilitation at the time of the November 1977 rating decision. Therefore, the portion of 38 C.F.R. § 3.303(c) which discusses vocational rehabilitation is not applicable.

Finally, the reduction in benefits was promulgated on November 1, 1977 with an effective date of February 1, 1978, and the Veteran was notified of this action. Therefore, the RO complied with the provisions of 38 C.F.R. § 3.105(e) which specify that the reduction be made effective 60 days from the date of the notice of the reduction to afford the Veteran time to present additional evidence.

In sum, a review of the record does not demonstrate that the RO failed to comply with the provisions of 38 C.F.R. § 3.105 or 38 C.F.R. § 3.343 in its November 1977 rating decision as alleged by the Veteran. Therefore, the November 1977 rating decision was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision.





ORDER

The request for revision of a November 1, 1977 rating decision, which terminated TDIU benefits, on the basis of CUE is denied.


REMAND

In correspondence dated December 2011 and October 2012, the Veteran indicated his desire to testify at a videoconference hearing before the Board. Therefore, a videoconference hearing should be scheduled.

Accordingly, the case is REMANDED for the following action:

The Veteran should be scheduled for a videoconference hearing at the Hartford, Connecticut RO before a Veterans Law Judge. The Veteran should be notified in writing of the date, time and location of the hearing.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals