Citation Nr: 1506161 Decision Date: 02/10/15 Archive Date: 02/18/15 DOCKET NO. 11-31 690A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the Board's January 15, 1986 decision which awarded an increased (50 percent) rating for agitated depression with paranoid ideation. ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The moving party served on active duty from August 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) following the receipt of the moving party's December 2011 motion alleging CUE in a January 15, 1986 Board decision. An April 2012 communication received by the moving party was construed as a request for a hearing in order to present oral argument in support of the motion alleging CUE. In June 2014, the undersigned awarded the moving party's motion for a Board hearing and a hearing was scheduled for a date in December 2014. The moving party subsequently indicated that he did not wish to attend a hearing. FINDINGS OF FACT 1. On January 15, 1986, the Board issued a decision in which it awarded an increased (50 percent) rating for agitated depression with paranoid ideation. 2. The January 15, 1986 Board decision which awarded an increased (50 percent) rating for agitated depression with paranoid ideation considered the correct law and evidence as they then existed and was not the product of an undebatable error. CONCLUSION OF LAW CUE in the Board's January 15, 1986 decision that awarded an increased (50 percent) rating for agitated depression with paranoid ideation has not been demonstrated. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. § 20.1404(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to motions for revision of a decision on the grounds of CUE. Livesay v. Principi, 15 Vet. App. 165 (2001). Review for CUE in a prior Board decision is based on the record that existed when that decision was made. 38 C.F.R. § 20.1403(b). Analysis Under 38 U.S.C.A. § 7111, the Board has been granted the authority to revise a prior decision of the Board on the grounds of CUE. A motion requesting review under this statute may be filed at any time after the underlying decision is made. Pursuant to an opinion of the VA General Counsel, VAOPGCPREC 1-98, the Board's authority applies to any claim pending on or filed after the date of enactment of the statute, November 21, 1997. See 38 C.F.R. § 20.1400. In this case, the moving party's motion for review or revision was received by the Board in December 2011. A motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the Veteran; the name of the moving party, if other than the Veteran; the applicable Department of Veterans Affairs file number; and, the date of the Board's decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to re-filing under this subpart. 38 C.F.R. § 20.1404(a). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has established a three-pronged test, each of which must be met before CUE is established: either (1) the correct facts, as they were known at the 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 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. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)). In order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). In his December 2011 motion, the moving party argued that there was CUE in the Board's January 15, 1986 decision which awarded an increased (50 percent) rating for agitated depression with paranoid ideation. His primary argument was that the Board failed to appropriately consider the extent to which his service-connected psychiatric disability adversely affected his employability. Specifically, he argued that the Board did not follow various regulations which required it to consider the impact of his psychiatric disability on his employability and did not properly evaluate the evidence which supported a 100 percent rating for his psychiatric disability. The moving party specifically identified certain pieces of evidence which he claims support the conclusion that a 100 percent rating for his service-connected psychiatric disability was warranted at the time of the Board's January 1986 decision. Such evidence includes an August 1981 examination report from L. Mosely, a determination by the Virginia Department of Rehabilitative Services, a January 1982 letter from G. Luedke, M.D., a January 1983 decision from the Social Security Administration (SSA) which involved an award of SSA disability benefits, a November 1984 referral from a VA counseling psychologist (T.R.B.) to the VA Vocational Rehabilitation Panel (Rehabilitation Panel), the November 1984 findings of the Rehabilitation Panel, treatment records from T. Sarvay, M.D. dated in May 1981 and May 1985, and the issuance of a "VA Service-Disabled Veterans Insurance policy" with a waiver of premiums. The moving party also claims that he was prevented from testifying as to the importance of such evidence during an August 1985 Board hearing and that the Board did not properly consider the evidence identified above, as well as his testimony during the hearing, in violation of 38 C.F.R. § 4.130 (1986) (which requires an assessment of a psychiatric disability's severity to be "based on all of the evidence of record") and various other regulatory provisions identified by the moving party. In other words, the moving party argues that the Board did not properly apply the evidence of record to the appropriate rating schedule because it did not adequately consider the evidence and did not explain why a rating in excess of 50 percent for the service-connected psychiatric disability was not warranted. Additionally, the moving party argues that the Board improperly "wanted to divide [his] psychiatric disability into nonservice-connected and service-connected components" and that "its goal was to claim that [his] psychiatric disability was entirely the result of nonservice-connected disorders." He contends that this was in violation of the requirement that a psychiatric disability be treated as a single service-connected entity. In this regard, he cited to 38 C.F.R. § 4.127 (1986). Initially, the Board notes that many of the specific pieces of evidence identified above were in the claims file at the time of the Board's January 1986 decision and some were specifically identified in the decision. Such evidence includes Dr. Luedke's January 1982 letter, the SSA's favorable decision concerning the moving party's claim for benefits, the November 1984 referral from T.R.B to the Rehabilitation Panel, the November 1984 findings of the Rehabilitation Panel, and the transcript of the August 1985 Board hearing. It is unclear as to whether the other identified documents (i.e. the August 1981 examination report from L. Mosely, a determination by the Virginia Department of Rehabilitative Services, and the May 1981 and May 1985 treatment records from Dr. Sarvay) were in the claims file at the time of the January 1986 Board decision. Nevertheless, the January 1986 Board decision specifically indicates that the Board's "attention [was] directed to the entire evidential record" at that time, including reports of VA examinations, examination reports from private psychiatrists (which advised that the moving party suffered from total disablement due to his psychiatric symptoms), evaluations by the Commonwealth of Virginia Social Services Division (which was in agreement with the moving party's private physician that he was medically unfit for rehabilitation counseling), the SSA's determination that the moving party was totally disabled, the fact that the VA Insurance Center had waived the moving party's premiums due to total disability, and the finding by VA that he was found to be permanently infeasible for vocational rehabilitation services. The Board set forth the evidence of record at the time as well as the symptomatology that was necessary to warrant various ratings under the appropriate diagnostic criteria and concluded that a 50 percent rating, but no higher, was warranted for the moving party's service-connected psychiatric disability. The moving party claims in his December 2011 motion that he is not arguing against the way that the Board weighed or evaluated the evidence in January 1986, but is rather contending that the Board "neither weighed nor evaluated any evidence that supported [his] inability to obtain or to retain substantial gainful employment because of [his] service-connected disabilities." However, it is apparent from the moving party's arguments that his overriding contention is that the Board improperly weighed and evaluated the evidence in the claims file at the time of its January 1986 decision. He has not claimed that any specific evidence was missing from the claims file at the time of the decision, the inclusion of which would have resulted in a manifestly different outcome to which reasonable minds could not differ. The Board considered all relevant evidence of record at the time of its January 1986 decision and any disagreement with how the Board evaluated this evidence (and how it concluded from the evidence that only a 50 percent rating for the service-connected psychiatric disability was warranted) is inadequate to raise a claim of CUE. Simmons v. West, 14 Vet. App. 84, 89 (2000); Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Also, even if there were additional records that had not been obtained and associated with the claims file at the time of the January 1986 Board decision, the failure to provide assistance with the development of a claim can never constitute CUE. Cook v. Principi, 318 F.3d 1334, 1341 (Fed. Cir 2002), Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Moreover, to the extent that the moving party generally cited various regulatory provisions that he believes were not followed by the Board in its January 1986 decision (including 38 C.F.R. §§ 4.127 and 4.130 (1986)) and to the extent that he has provided nonspecific statements that the Board violated his right to due process, a nonspecific claim of error such as "failure to follow the regulations" or "failure to give due process," does not constitute CUE and it is not apparent in this case that the outcome would have been manifestly different had the Board specifically cited to the various regulatory provisions identified by the moving party. See Fugo, 6 Vet. App. at 43-44. Also, the Board notes that the moving party has claimed that the January 1986 Board decision improperly referred the issue of entitlement to a total rating for compensation purposes based on individual unemployability to the agency of original jurisdiction (AOJ). However, that issue had not been adjudicated and appealed to the Board at that time, so the Board properly referred this issue to the AOJ and the fact that it did not adjudicate the issue in the first instance does not constitute CUE. It is not argued or shown that had the matter been adjudicated, the benefit would have been allowed. The Veteran was only service-connected for depression at the time and the he did not meet the schedular criteria for a total disability rating based on individual unemployability. See 38 C.F.R. § 4.16. The Board could not have awarded a total disability rating based on individual unemployability in the first instance and at most could have ordered for further development that may or may not have resulted in a favorable determination. In sum, the moving party has not presented evidence of CUE in the Board's January 15, 1986 decision which awarded an increased (50 percent) rating for agitated depression with paranoid ideation. Therefore, the motion to reverse or revise that decision must be denied. ORDER The motion to reverse or revise the Board's January 15, 1986 decision that awarded an increased (50 percent) rating for agitated depression with paranoid ideation, on the grounds of CUE, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs