Citation Nr: 1323922 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 13-11 032 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error in a January 1991 decision of the Board of Veterans' Appeals that granted a 70 percent rating and effectively denied a 100 percent rating for service-connected schizophrenia. (The issue of entitlement to an effective date prior to December 31, 1990, for the grant of a 100 percent rating for service-connected schizophrenia is addressed in a separate decision of the Board). REPRESENTATION Moving party represented by: John F. Cameron, Attorney ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 motion from the moving party for revision or reversal of a January 7, 1991 Board decision that granted a 70 percent rating and effectively denied a 100 percent rating for service-connected schizophrenia. FINDINGS OF FACT 1. In a decision issued on January 7, 1991, the Board granted a 70 percent rating and effectively denied a 100 percent rating for service-connected schizophrenia. 2. The record does not establish that the correct pertinent facts, as they were known on January 7, 1991, were not before the Board, or that the Board incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim would have been manifestly different but for the error. CONCLUSION OF LAW The January 7, 1991, decision of the Board that grant a 70 percent rating and effectively denied a 100 percent rating for service-connected schizophrenia does not contain clear and unmistakable error. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1403, 20.1404 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the notice and duty to assist provisions of the law and regulations are not applicable to claims alleging clear and unmistakable error. Livesay v. Principi, 15 Vet. App. 165 (2001). Therefore, discussion of the notice and duty provisions in this case is not required. 38 U.S.C.A. §§ 5109A(a), 7111(a) (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2012). The Veteran and his representative assert that there was clear and unmistakable error (CUE) in a January 7, 1991 decision of the Board that granted a 70 percent rating, but not higher, for schizophrenia. A decision by the Board is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. For the purpose of authorizing benefits, a rating or other adjudicative decision of the Board that constitutes a reversal or revision of a prior decision of the Board on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. Review to determine whether CUE exists in a case may be instituted by the Board on the Board's own motion or upon request of the claimant. A request for revision of a decision of the Board based on CUE may be made at any time after that decision is made. Such a request shall be submitted directly to the Board and shall be decided by the Board on the merits, without referral to any adjudicative or hearing official acting on behalf of the Secretary. 38 U.S.C.A. § 7111 (West 2002). In general, review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. For Board decisions issued on or after July 21, 1992, a special rule provides for the inclusion of relevant documents possessed by VA not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. 38 C.F.R. § 20.1403(b) (2012). The Board decision at issue here was completed in 1991. Therefore, the provisions provided in 38 C.F.R. § 20.1403(b)(1), (2) are inapplicable. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c) (2012). Examples of situations that are not CUE include: a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; VA's failure to fulfill the duty to assist; and a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d) (2012). CUE also 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) (2012). There is a three-pronged test to determine whether CUE was present in a prior determination. The criteria are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310 (1992). 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. If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. 40 (1993); Grover v. West, 12 Vet. App. 109 (1999); Daniels v. Gober, 10 Vet. App. 474 (1997); Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet. App. 242 (1994); Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). A claim of CUE merely on the basis that the previous adjudication at issue improperly weighed and evaluated the evidence does not satisfy the stringent legal requirements for CUE. Fugo v. Brown, 6 Vet. App. 40 (1993). The law that was in effect at the time of the Board's January 1991 decision provided that disability ratings were determined by the application of a schedule of ratings which was based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1990). Separate diagnostic codes identified the various disabilities. When there was a question as to which of two ratings were to be applied, the higher rating would be assigned if the disability picture more nearly approximated the criteria required for that rating. Otherwise, the lower rating was to be assigned. 38 C.F.R. § 4.7 (1990). Schizophrenia, chronic undifferentiated type, was rated under the General Rating Formula for Psychotic Reactions. Under that formula, a 100 percent rating was warranted where the evidence showed active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce complete social and industrial inadaptability. A 70 percent rating was warranted where the evidence showed lesser symptomatology such as to produce severe impairment of social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9204 (1990). Additionally, the assignment of a 100 percent schedular rating was warranted in cases in which a veteran was rated 70 percent disabled due to a psychiatric disorder, the psychiatric disorder was the only compensable disability, and the psychiatric disorder was found to preclude the Veteran from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(c) (1990); Swan v. Derwinski, 1 Vet. App. 20 (1990). Effective November 7, 1996, the provisions of 38 C.F.R. § 4.16(c) were removed from the rating schedule. Nevertheless, as the Veteran's claim for an increased rating was filed before the regulatory change occurred, it was applicable. The Veteran and his attorney argue that the January 7, 1991, Board decision was clearly and unmistakably erroneous because the Board failed to consider, or misapplied, the relevant laws, regulations, and case law precedent. Specifically, they allege that the Board failed to apply 38 C.F.R. § 4.16(c), and that the outcome would have been manifestly different but for that error. However, based on a review of the record, the Board finds the Board correctly applied all the relevant laws and regulations in existence at the time of the January 7, 1991, decision. The evidence of record at the time of the January 1991 Board decision included a January 1990 VA Consultation Sheet in which the examiner noted that the Veteran's social and industrial impairment was moderate to moderately severe. A December 1989-February 1990 VA Medical Center (VAMC) hospitalization report indicated that the examiner expressed no opinion as to the Veteran's employability upon discharge. It was noted in the report that the Veteran received Vocational Rehabilitation Therapy. His prognosis was guarded but he was noted to be moderately improved. He was considered competent and could resume pre-hospitalization activities. On April 20, 1990, the RO received a letter from the Veteran in which he stated that he was rated as 50 percent disabled but was unable to hold a job. He requested "total disability compensation at [100] percent disabled" but indicated that he would subsequently perform volunteer work at a local VA facility. In May 1990, the RO received a March 1990 to May 1990 VAMC hospitalization report. No opinion was rendered about the Veteran's employability upon his discharge. Mental status evaluation showed that his appearance and behavior were normal; his stream of speech was normal, spontaneous, and logical; there were no active delusions; he was not hearing voices; and he was oriented. The physician determined that he was competent. In November 1990, the RO received an August 1990 to October 1990 VAMC hospitalization report. No opinion was rendered about the Veteran's employability. Mental status evaluation revealed that the Veteran presented with a fair appearance, a positive attitude, and he was cooperative, reasonable and exhibited satisfactory behavior. He denied suicidal or homicidal ideation and was properly oriented in all spheres. According to the rating criteria then in effect, the Board determined, based on the evidence then of record, that the Veteran's service-connected schizophrenia was not manifested by active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial adaptability. The Board instead concluded that the disability was manifested by lesser symptomatology such as to produce severe impairment of social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9204 (1990). That conclusion is supported by the evidence detailed above. Specifically, the evidence discussed above indicated that there was improvement in the Veteran's symptoms when he was discharged from his periods of hospitalization; demonstrated that he had no active psychotic manifestations during the relevant time periods; and failed to show that he was unemployable as a result of his schizophrenia symptoms. The Board notes that the Veteran was granted a temporary total rating during periods of hospitalization. 38 C.F.R. § 4.29 (1990). The 70 percent rating at issue was assigned during the periods of time in which he was not hospitalized. Notably, although the January 1991 Board decision did not specifically cite 38 C.F.R. § 4.16(c) or otherwise discuss consideration of a 100 percent rating under that provision, the Board, in denying a 100 percent schedular rating, also effectively denied a total rating under 38 C.F.R. § 4.16(c) because the issue involved for a total rating under 38 C.F.R. § 4.16(c) for a veteran who was rated 70 percent disabled by a mental disorder was essentially the same as was involved for a total schedular rating, that is whether the veteran was totally disabled for the purposes of employment. Compare 38 C.F.R. § 4.132, Diagnostic Code 9204 (1990) (requiring "total" social and industrial inadaptability) with 38 C.F.R. § 4.16(c) (requiring evidence which shows that a service-connected mental disorder "precludes" a veteran from securing or following a substantially gainful occupation). Additionally, that the inquiries involved for both the total schedular rating and the total rating under 38 C.F.R. § 4.16(c) were essentially the same is illustrated by the requirement in 38 C.F.R. § 4.16(c) that, where a veteran was precluded from securing or following a substantially gainful occupation, a 100 percent schedular rating be assigned rather than a total rating based on individual unemployability. Thus, by denying a 100 percent rating, the January 1991 Board decided that the evidence did not show total industrial inadaptability and that it did not show that the Veteran was precluded from securing or following a substantially gainful occupation. Again, that conclusion does not amount to legal error and is a plausible interpretation of the relevant evidence of record at the time. While other adjudicators may have weighed the evidence differently, a disagreement as to the weighing of the evidence does not constitute CUE. The Board finds that the evidence of record does not mandate a different outcome such that reasonable minds cannot differ. In sum, the Board's January 1991 decision was supported by the evidence then of record, and the Board's denial of a total rating under 38 C.F.R. § 4.132, Diagnostic Code 9204 or pursuant to 38 C.F.R. § 4.16(c) does not amount to legal error. To the extent that the Veteran and his representative may disagree with how the facts were weighed or evaluated by the Board in reaching its decision in January 1991, the Board notes that such disagreement alone is also insufficient to constitute CUE. Russell v. Principi, 3 Vet. App. 310 (1992); Fugo v. Brown, 6 Vet. App. 40 (1993). Accordingly, the Board finds that the correct laws and facts were before the Board in January 1991, and that the decision was supported by the record in existence at that time. Moreover, the Board's decision correctly applied all the relevant laws and regulations in existence at the time of the January 1991 decision. In the absence of the kind of error of fact or law which would compel the conclusion that the result would have been manifestly different but for the error, there is no basis upon which to find CUE in the January 7, 1991 Board decision that granted a 70 percent rating, but not higher, for the service-connected schizophrenia. Accordingly, the Veteran's motion for revision of that decision must be denied. ORDER The motion for revision of a January 1991 Board decision that granted a 70 percent rating and effectively denied a 100 percent rating for service-connected schizophrenia on the basis of clear and unmistakable error is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs