Citation Nr: 1615218 Decision Date: 04/14/16 Archive Date: 04/26/16 DOCKET NO. 15-14 219A ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the January 15, 1965, decision of the Board of Veterans Appeals (Board), which confirmed the reduction of the moving party's rating for his service-connected right ankle disability from 40 percent disabling to 20 percent disabling. (The issues of whether there was clear and unmistakable error (CUE) in an August 1964 rating decision that reduced the Veterans' rating for his service-connected right ankle disability from 40 percent disabling to 20 percent disabling, whether new and material evidence has been received to reopen a claim for entitlement to service connection for Non-Hodgkin's Lymphoma, entitlement to service connection for multilevel degenerative disc disease of the cervical spine, entitlement to service connection for posttraumatic stress disorder, and entitlement to a rating in excess of 20 percent for residual, compound fracture, right ankle are addressed in a separate decision.) REPRESENTATION Moving party represented by: Robin E. Hood, Attorney ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The moving party is a Veteran who served on active duty from September 1951 to January 1955 and from April 1956 to October 1957. This matter comes before the Board as an original motion of the moving party to reverse or revise, on the basis of CUE, a Board decision promulgated on January 15, 1965. The Board notes that in a September 2015 statement, the Veteran waived his request for a hearing before a Veterans Law Judge. FINDING OF FACT The January 15, 1965 Board decision was supported by the evidence then of record and it is not shown that the applicable statutory and regulatory provisions were incorrectly applied. CONCLUSION OF LAW Clear and unmistakable error is not shown in the January 15, 1965 Board decision. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. §§ 20.1400-20.1411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board finds that the CUE claim is not subject to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (holding there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions.) As a claim of CUE is not by itself a claim for benefits, CUE is fundamentally different from any other kind of action in the VA adjudicative process. As a consequence, VA's duties to notify and assist are not applicable to CUE motions. The Board notes that the moving party and his attorney have been accorded sufficient opportunity to present his contentions. There is no indication that they have further argument to present. II. Motion for Revision of the January 15, 1965 Board decision The moving party asserts that there was CUE in August 1964 rating decision, which reduced the Veteran's right ankle disability rating from 40 percent disabling to 20 percent disabling. The August 1964 rating decision was subsumed by the January 15, 1965 Board decision, which affirmed the reduction. 38 C.F.R. § 20.1104 (2015). Therefore, the Board construed the Veteran's claim as a claim of CUE in the January 15, 1965 Board decision. Review of the record reflects that the moving party did not appeal the January 15, 1965 Board decision. Accordingly, it became final. See 38 C.F.R. § 20.1100(a). There are two exceptions to the rule of finality of VA decisions, i.e., challenges based on CUE in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108). See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In a July 2010 claim, the Veteran requested an increased rating for his right ankle disability, currently rated as 20 percent disabling. He stated that he also asked that CUE be found in the initial rating decision by VA. He noted that he was given a 50 percent rating when he was discharged from the service and that this was reduced to 10 percent and he thinks it was not done correctly. The Board has original jurisdiction to consider motions for revision of prior Board decisions. Motions should be filed at the Board, but requests filed elsewhere within VA and transmitted to the Board shall be treated as if filed at the Board, as in this case. See 38 C.F.R. § 20.140 (c), (d) . CUE is a very specific and rare kind of error; it is the kind of error of fact or 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. See, e.g., Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either 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 (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. See Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Damrel, supra; Russell, supra. 38 C.F.R. § 20.1403 codifies the current requirements for a CUE motion that the Court of Appeals of Veterans Claims (Court) has defined for motions of CUE in Board decisions as: (1) 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. (2) 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. (3) It is 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. Additionally, 38 C.F.R. § 20.1403(d) gives examples of situations that are not CUE. CUE is not a: changed medical diagnosis; failure to fulfill the duty to assist; disagreement as to how the facts were weighed or evaluated; change in interpretation of a statute or regulation. 38 C.F.R. § 20.1403(c) also indicates that, where it is not absolutely clear that a different result would have ensued, but for the error, the error complained of cannot be CUE. No new evidence will be considered, unless the Board decision was decided on or after July 21, 1992. See 38 C.F.R. § 20.1403(b). In addition, the law precludes remands or other referral for the purpose of deciding the motion. 38 U.S.C.A. § 7111(e); 38 C.F.R. § 20.1405(b). The benefit of the doubt provisions of 38 U.S.C.A. § 5107(b) are inapplicable in CUE. See 38 C.F.R. § 20.1411(a). In fact, the moving party bears the burden of presenting specific allegations of error that would amount to CUE. Thus, for a moving party to make a successful CUE showing is an extremely difficult burden. The moving party's claim is essentially that his right ankle disability rating should not have been reduced in the August 1964 RO rating decision, which was affirmed by the January 15, 1965 Board decision. Disability ratings are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015). The regulations in effect at the time of the Veteran's 1964 reduction stipulated that where the reduction of an award for 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) (1964). In addition, 38 C.F.R. § 3.344(a) (1964) provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examination, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement (including psychotic and psychoneurotic reaction) will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344 (1959). The provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant reduction. Under the Diagnostic Criteria in effect in August 1964 and January 1965, Diagnostic Code 5270 provided that ankylosis of the ankle in plantar flexion less than 30 degrees warranted a 20 percent rating; in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between 0 degrees and 10 degrees warranted a 30 percent rating; in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity, warranted a 40 percent rating. Under Diagnostic Code 5271, moderate limited motion of the ankle warranted a 10 percent rating, marked limited motion of the ankle warranted a 20 percent rating. 38 C.F.R. § 4.71a, DCs 5270, 5271 (1965). A January 1961 rating decision noted that the Veteran's ankle had dorsiflexion limited at 85 degrees and plantar flexion limited at 135 degrees, based on a VA examination. He was given a 40 percent rating from January 3, 1961 under Diagnostic Code 5270. The August 1964 rating decision indicates the Veteran's residuals fracture of right ankle, requiring short leg brace, was rated as 40 percent disabling from January 1, 1964 under Diagnostic Code 5270, and as 20 percent disabling from November 1, 1964, under Diagnostic Code 5271. The rating was based on a July 1964 VA examination which indicated the Veteran's right ankle measured 1/2 inch greater than the left, but there was no difference at calf level. Voluntary dorsiflexion and plantar flexion were limited to 50 percent. Positive movements beyond this range were painful. The Veteran reported that he wore a short leg brace because there was no stability in his right ankle. He had difficulty on curbs, walking in sand, etc. There was a continuous ache in the ankle. In the January 15, 1965 decision, the Board found that a rating in excess of 20 percent was not warranted for residuals of fracture, right ankle, under the applicable schedular provisions. The decision noted that the Veteran had contended that there had been no improvement in the right ankle disability and that the 40 percent rating should be restored. The Board specifically found that dorsiflexion and plantar flexion of the right ankle were limited to approximately 50 percent, therefore, ankylosis of the right ankle was not shown. The Board further found that while X-ray study indicates evidence of fractures in the bone structure of the right ankle there was no gross displacement of the bones in this area. The Board noted that irrespective of whether or not there has been any improvement in the service-connected right ankle disorder, the evaluation of the disorder must be based on the findings recorded in association with the applicable schedular provisions. In this connection it is pointed out that the applicable schedule (Code 5270) provide a minimum rating of 20 percent for ankylosis of an ankle. Upon review of the January 1965 decision, the Board finds that the allegation of CUE is not supported. A review of the evidence and the Board's decision does not show that the decision was based on incorrect facts or an incorrect application of the law. The facts that the Board cited in its decision are consistent with the evidence associated with the claims file at the time of the decision, including the July 1964 VA examination evaluating the right ankle. Additionally, the law as it was interpreted at that time was correctly applied. A January 15, 1965 letter notified the Veteran of the Board's decision. As the Veteran did not appeal the 1965 denial of his claim within the one-year appeal period, the decision became final. 38 U.S.C.A. § 7105(c). Although the January 1965 Board decision did not specifically discuss the reduction notice in the August 1964 rating decision, the reduction was effective November 1, 1964, 60 days from the date of the rating decision, consistent with the regulations in effect at that time. Additionally, the Veteran was afforded a full VA examination in July 1964, on which the reduction was based. The examination was accurately cited by the Board in its decision. The Board's findings that the Veteran's symptoms did not meet the criteria for a rating higher than 20 percent were consistent with the evidence of record at that time. A disagreement as to how the facts were weighed or evaluated is not a CUE. Consequently, the Board finds that the record at the time of the January 15, 1965 Board decision presented facts that could be evaluated under the law and regulations in existence at that time to support the determination that a rating in excess of 20 percent was not warranted for residuals of fracture, right ankle, and the reduction was proper. Thus, there was no clear and unmistakable error in the January 15, 1965 Board decision affirming the reduction of the Veteran's right ankle disability from 40 percent disabling to 20 percent disabling. Since there was no CUE in the January 15, 1965 Board decision, the motion to revise that decision based on CUE must be denied. ORDER The motion for reversal or revision of the January 15, 1965 Board decision, which confirmed the reduction of the moving party's rating for his service-connected right ankle disability from 40 percent disabling to 20 percent disabling, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs