Citation Nr: 1619845	
Decision Date: 05/16/16    Archive Date: 05/27/16

DOCKET NO.  12-14 638	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES


1.  Whether there was clear and unmistakable error (CUE) in an August 2004 rating decision that established an effective date of January 24, 2001, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), based on the distinct CUE challenge that VA committed error by failing to consider and apply 38 C.F.R. § 4.16(b) for the purpose of determining if an extra-schedular TDIU was warranted prior to January 24, 2001.

2.  Whether there was clear and unmistakable error (CUE) in an August 2004 rating decision that established an effective date of January 24, 2001, for the award of a TDIU, based on the distinct CUE challenge that an earlier 1998 TDIU claim remained open and pending and thus was not an abandoned claim.  


REPRESENTATION

Appellant represented by:	James M. McElfresh II, Agent


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Lindio, Counsel


INTRODUCTION

The Veteran served on active duty from December 1950 to February 1954.

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs). 

In a December 2011 decision, the RO in Salt Lake City, Utah, addressed the merits of the distinct CUE allegation that VA had failed to consider and apply 38 C.F.R. § 4.16(b) (2004) for an extra-schedular TDIU, and determined that the August 2004 rating decision did not contain CUE in awarding a TDIU rating effective from January 24, 2001.  The Veteran filed a Notice of Disagreement (NOD) with this RO decision in December 2011.  The RO furnished the Veteran a Statement of the Case (SOC) in May 2012, and the Veteran filed a Substantive Appeal (VA Form 9) later that month.

In August 2015, the Board remanded this matter as inextricably intertwined with the claim that there was CUE in the earlier 1998 TDIU claim remained open and pending and thus was not an abandoned claim.

In a November 2015 rating decision, the RO in Janesville, Wisconsin addressed the merits of the distinct CUE allegation of whether an earlier 1998 TDIU claim remained open and pending.  The Veteran filed a notice of disagreement later that month and the RO issued a January 2016 SOC.  In February 2016, the Veteran filed a VA Form 9.  This matter is currently under the jurisdiction of the RO in Salt Lake City, Utah.

As noted in the August 2015 Board remand, the Veteran has alleged different bases of CUE in the established effective date of January 24, 2001, for the TDIU grant in the August 2004 rating decision.  As such, there remain two separate and distinct motions of CUE, upon which the Veteran seeks to challenge the January 24, 2001, effective date assigned for the TDIU grant.  

The Board also again observes that an entirely different CUE theory was the subject of the Board's December 2009 decision and was affirmed by the Court in an April 2011 Memorandum Decision.  That theory of CUE, as raised by the Veteran, was that an effective date of January 28, 1993, should have been assigned for the TDIU grant, based on the argument that the Veteran had filed an earlier TDIU claim that had not been adjudicated, based on the Veteran's challenge that the RO, in the August 2004 rating decision, had failed to properly apply 38 C.F.R. § 3.400(o)(1) and, had it done so, he would have been assigned an effective date for his TDIU rating that dated back to 1993.  This distinct CUE motion was initially denied by the RO in an April 2009 rating decision.  On appeal, it was denied by the Board in a December 2009 decision, and the Board's decision was affirmed in the April 2011 Memorandum Decision by the Court.  In July 2011, a panel of the Court determined that the April 2011 memorandum decision would be the decision of the Court.  (The Veteran appealed the Court's memorandum decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit), but that appeal was dismissed in an October 2011 Order because the Veteran had failed to file a timely brief).  Hence, the Court's affirmance of the December 2009 Board decision remains undisturbed.

In May 2012, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the Salt Lake City RO.  A transcript of this hearing was prepared and associated with the claims file.

In December 2012, the Veteran testified at a personal hearing before a Veterans Law Judge (VLJ).  In October 2014, the Board's Principal Deputy Vice Chairman granted the Veteran's motion to recuse the VLJ who had conducted the December 2012 hearing from further participation in his case.  The recusal ruling offered the Veteran the opportunity to testify at a new hearing.  He declined this offer in a correspondence that was received by the Board in November 2014.  The Veteran's case has been reassigned to the undersigned Veterans Law Judge.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a) (2) (West 2014).


FINDINGS OF FACT

1.  In an August 2004 rating decision, the RO granted a TDIU, effective January 24, 2001.  

2.  There was no TDIU claim pending prior to January 24, 2001, to include a 1998 TDIU claim, which was abandoned.

3.  The Veteran has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the August 2004 rating decision, or that the RO incorrectly applied the applicable statutory and regulatory provisions existing at that time, including 38 C.F.R. § 4.16(b).


CONCLUSIONS OF LAW

1.  The August 2004 rating decision in which the RO denied service connection for a nervous condition, is not shown to involve CUE, based on there being no TDIU claim pending prior to January 24, 2001, to include an abandoned 1998 TDIU claim, and is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R.  §§ 3.104, 3.105, 3.158, 20.302(a), 20.1103 (2015).

2.  The August 2004 rating decision in which the RO denied service connection for a nervous condition, is not shown to involve CUE, based on the distinct CUE challenge that VA committed error by failing to consider and apply 38 C.F.R. § 4.16(b) , and is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R.  §§ 3.104, 3.105, 4.16(b), 20.302(a), 20.1103 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist
 
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and implemented at 38 C.F.R. § 3.159 (2015), defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 

However, a motion for reversal or revision of a prior RO decision due to CUE is not a claim but a collateral attack on a prior decision. Thus, one requesting such reversal or revision is not a claimant within the meaning of the 38 U.S.C.A. § 5103 and § 5103A; and, consequently, the notice and development provisions of the statutes and regulations do not apply in CUE adjudications.  Livesay v. Principi, 15 Vet. App. 165 (2001); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2015).

In any event, it is clear from the record and the Veteran's communications that he is cognizant as to what is required of him and of VA.  As noted above, the Veteran was afforded an opportunity to present testimony at a hearing before a DRO and the Board.  During the Veteran's Board hearing, the Veteran's agent explained the Veteran's theory of entitlement.  

Additionally, the Veteran was offered an opportunity to have a new hearing, following the recusal of the Veterans Law Judge who performed his December 2012 hearing.  The Veteran declined to receive an additional hearing.  Moreover, the Veteran has been represented by an attorney and later an agent in this matter.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (holding that an appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error").  The Veteran and his attorney/agent have not indicated there is any outstanding evidence relevant to this matter.  Accordingly, there will be no prejudice to the Veteran in proceeding to a decision on his claims. 

II. Background

The Veteran contends that an effective date prior to January 24, 2001 is warranted for the grant of a TDIU.  

The Board notes that, in a September 1995 decision, the Board denied the Veteran's claim for service connection of a neurological disorder of the right upper extremity, as well as his claims of entitlement to an evaluation in excess of 20 percent for the right shoulder disability and an extension of a temporary total rating under 38 C.F.R. § 4.30.  The U.S. Court of Appeals for Veterans Claims (Court), in a June 1997 decision, dismissed the right shoulder increased rating claim and limited the appeal to the remaining two claims.  Those two remaining claims were remanded by the Court.  

The Board thereafter again denied the service connection claim and the 38 C.F.R. § 4.30 claim, and the Court upheld the Board in a decision issued in March 2000; judgment was entered by the Court in August 2000.  The Veteran continued his appeal to a higher court and, in April 2001, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) dismissed the appeal as to those two claims.  

Nonetheless, the Court construed a June 2001 written statement from the appellant to be a motion for remand in light of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), which had been enacted prior to the Board's decision.  In September 2001, VA agreed that a remand was needed pursuant to the VCAA.  

Thereafter, in an August 2002 Board decision, the 38 C.F.R. § 4.30 claim was denied.  The appellant's motion for reconsideration of that decision was denied by the Board in November 2002, and he did not appeal that denial to the Court.  

In February 2003, the Board issued a decision in which the appellant's claim for service connection for ulnar neuropathy of the right upper extremity was granted.  The grant was implemented via an RO rating decision issued in March 2003; the RO assigned an initial evaluation of 10 percent and an effective date for service connection of November 12, 1987.  The initial evaluation was subsequently increased to 30 percent, retroactively effective from November 12, 1987.

In an August 2004 rating decision, the RO granted a TDIU, effective January 24, 2001, the date the Veteran met the schedular requirements for a TDIU.  

In a December 2009 decision, the Board denied a CUE theory based on the argument that the Veteran had filed an earlier TDIU claim that had not been adjudicated, based on the Veteran's challenge that the RO, in the August 2004 rating decision, had failed to properly apply 38 C.F.R. § 3.400(o)(1) and, had it done so, he would have been assigned an effective date for his TDIU rating that dated back to 1993.  At that time, in denying the Veteran's claim, the Board found that the Veteran had not filed a claim for TDIU prior to January 24, 2001.

The Board's December 2009 decision was affirmed in the April 2011 Memorandum Decision by the Court and reissued as the decision of a panel of the Court in July 2011.  In the April 2011 Court decision, the Court referred the Veteran's claim for CUE based on the Veteran's contention that he had not abandoned a 1998 claim for TDIU based on his failure to return a completed formal application for TDIU. The Veteran claimed that he had filed a completed TDIU form in January 1998 or that he alternatively did not receive such a form in 1998 because the RO addressed the mail containing the form to an incorrect zip code.

In May 2013, the Board dismissed a motion alleging CUE in the August 2004 rating decision.  In November 2013, the Court granted the Appellee's motion to remand, vacating the May 2013 Board decision and remanding the claim for appropriate action.  

In August 2015, the Board dismissed the May 2013 Board decision and remanded the Veteran's CUE claim based on the distinct CUE challenge that VA committed error by failing to consider and apply 38 C.F.R. § 4.16(b).  

Also in August 2015, the Board, in a separate decision, denied an increased rating for ulnar neuropathy of the right upper extremity.  At that time, the Board again clarified that the Veteran's claimed tremor was not due to, or a symptom of, his service-connected disability.  

III. Analysis

Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE.  However, if the evidence establishes CUE, the prior decision will be reversed and amended.  A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.

As noted, the Veteran now seeks to establish an earlier effective date (prior to January 24, 2001) for the award a TDIU.  To this end, the Veteran has alleged CUE in the August 2004 rating decision, wherein the RO granted a TDIU, effective January 24, 2001, which was the date that the Veteran's disabilities met the schedular requirements for a TDIU.  

In alleging CUE, the Veteran has two separate contentions as to CUE in the August 2004 rating decision.  

The Veteran's first contention, as noted in the April 2011 Court memorandum decision, the Veteran claimed that he had not abandoned a 1998 claim for TDIU based on his failure to return a completed formal application for TDIU.  Rather, the Veteran claimed that he had filed a completed TDIU form in January 1998 or that he alternatively had not receive such a form in 1998 because the RO had addressed the mail containing the form to an incorrect zip code.

The Veteran's second contention, as raised by his agent, was based on the distinct CUE challenge that VA committed error by failing to consider and apply 38 C.F.R. § 4.16(b), and had failed to refer the Veteran's claim for extraschedular consideration.

In determining whether a prior determination involves CUE, the Court has established a three-prong test.  The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had 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 adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)(en banc).

CUE is a very specific and rare kind of "error." It is the kind of error in 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 manifestly have been different but for the error.  Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied.  Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14.

A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication.  Baldwin v. West, 13 Vet. App. 1(1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).

The Board notes that a claim of CUE 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).  As such, 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, 6 Vet. App. at 43-44.  Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits.  Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).  Here, as regards the August 2004 rating decision rating decision, the Veteran's allegations simply do not meet the criteria noted above.

A.  CUE theory that an earlier 1998 TDIU claim remained open and pending and thus was not an abandoned claim 

The Veteran claims that he had not abandoned a 1998 claim for TDIU based on his failure to return a completed formal application for TDIU.  Rather, he contends that he had provided the requested application in January 1998 or alternatively that he never received the RO's 1988 request for such a form because the RO had addressed the mail containing the form to an incorrect zip code.

Pertinent regulations provide that if the Veteran does not furnish the evidence requested within one year after the date of the request, such as VA's February 1998 request for TDIU information, the claim will be considered abandoned.  38 C.F.R. § 3.158(a).  The prescribed one-year period expired in February 1999.  The Board notes, in passing, that during most of one-year period following February 1998, during which the Veteran needed to respond to VA's request, the Veteran was represented by an attorney, and thus not without legal aid to help him continue a TDIU claim.  

The record is clear that the RO requested that the Veteran provide a TDIU application.  In a February 1998 letter, the RO specifically requested that "[t]o pursue your claim for unemployability please complete and return the enclosed application."  Such letter also clearly indicates that the RO enclosed a copy of a VA Form 21-9840 VETERAN'S APPLICATION FOR INCREASED COMPENSATION BASED ON UNEMPLOYABILITY.

The Veteran does not dispute that the RO made such a request, but contends that he never received the request due to the RO erroneously sending the request letter to zip code 84770, rather than the correct zip code of 84790 (or alternatively that he provided the requested application).

Generally, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926).  However, as the evidence is clear that the February 1998 letter was indeed addressed to the incorrect zip code, and given the Veteran's claim that he did not receive such a letter, such a presumption may be rebutted.  As such, the burden shifts to VA to establish that the Veteran did receive the February 1998 letter.  Crain v. Principi, 17 Vet. App. 182 (2003).

The Board first notes that the only irregularity as to the address used was the zip code having one incorrect number.  The Veteran's street number, street name, city, and state were all correct.  The only variance was the use of zip code 84770 as opposed to the correct 84790.  

The Board finds that the record supports finding that the US Postal Service had sufficient address information to deliver the February 1998 letter.  In support of such a finding, the Board notes that in a January 1998 letter the RO had also addressed that letter to the same wrong zip code, 84770, with all the other address information as the one used in the February 1998 letter.  However, the record is clear that the Veteran received the January 1998 letter, despite that letter having the same zip code irregularity as the February 1998 letter.  

In the January 1998 letter, which used the same incorrect zip code as the February 1998 letter, the RO informed the Veteran that his dependents information was incomplete and provided him a VA Form 21-686c, DECLARATION OF STATUS OF DEPENDENTS form, to fill out.  That same month, in January 1998, the Veteran submitted back to the RO a completed VA Form 21-686c.  Such action by the Veteran clearly demonstrates that although the January 1998 letter had been incorrectly addressed, he still promptly received the letter at his home.

The Board further notes that neither the January 1998, nor the February 1998 letter, was returned by the US Postal Service as undeliverable.  

Moreover, the Veteran himself has implied that he must have received the February 1998 letter, as he has alternatively argued that he did provide the requested TDIU application in 1998.  The Board finds, however, that the Veteran's claims of not having received the February 1998 letter requesting he provide a TDIU application and alternatively claiming that he submitted such a TDIU application to indicate a lack of credibility, given that such contentions are in direct opposition to each other.  

The Board next turns to the Veteran's contention that he did provide the requested  TDIU application in 1998, and thus had a pending application prior to the 2003 TDIU application which led to his grant of TDIU, effective January 24, 2001.

The Board notes the December 2009 Board decision has previously established that the Veteran did not have any pending claims for TDIU prior to January 24, 2001.  The Court subsequently upheld the Board's December 2009 decision in an April 2011 memorandum decision, which was reissued by a panel of the Court in July 2011.  

As such, to the extent that the Veteran has claimed that he had prior pending claims for TDIU, including based on his 1993 submission of information regarding his Social Security Administration disability benefits, no such pending claims have been established.  

The Veteran's agent has also argued that VA failed to inform the Veteran of the need to file a CUE claim for retrospective benefits.  However, an alleged breach by VA of statutory duty to assist benefits claimant, purportedly causing claimant's failure to file claim, would not permit recognition of date of such breach as effective date of benefits, in view of the separate statutory command that effective date of benefits cannot be earlier than the filing of an application therefor.  Rodriguez v. West, 189 F.3d 1351 (1999).  

The Board further notes that a 1993 claim for a TDIU would have been subsumed by the later 1998 claim, which the Veteran legally abandoned.

However, the Board will also consider the copy of a VA Form 21-8940, which was dated by the Veteran as signed on January 13, 1998 and submitted by him in conjunction with the current claim; he alleges that the application has been part of his claims file since 1998.
	
A copy of the VA Form 21-8940, dated by the Veteran in January 13, 1998, has not been date stamped or indicated in VBMS as received by VA until the current appeal, over a decade after 1998.  

The Board also finds it significant, that the December 2009 Board decision did not find such a document during the claims file review involved in drafting the December 2009 decision, which specifically considered the question of whether a TDIU application had been submitted prior to January 24, 2001.  Similarly, the Board finds it significant that following the December 2009 decision the Veteran's attorney appealed that matter to the Court, but does not appear to have pointed out a January 1998 application, though it would clearly be supportive of the Veteran's case.  Additionally, the Court itself did not take notice of such a document upon its review of the record in 2011 and in its subsequent decision.  

Moreover, the Board finds that the document being dated as signed on January 13, 1998 to be significant.  As previously noted, the RO did not request that the Veteran fill out a TDIU application until the February 1998 letter.  The January 1998 letter did not include the enclosure of a TDIU application form or even include a request for TDIU information.  The TDIU application dated, which the Veteran has dated as filled out in January 1998, is dated one month PRIOR TO the RO actually requesting such information.

Given the above, the Board finds that the Veteran received the February 1998 letter wherein the RO requested he fill out a TDIU application.  The Board further finds that no TDIU application was provided to the Board prior to 2003.  As such, the Board finds that an earlier 1998 TDIU claim had not remained open and pending, and was in fact an abandoned claim.  As such, there was no CUE in the August 2004 rating decision on that basis.

B.  CUE based on VA error by failing to consider and apply 38 C.F.R. § 4.16(b) 

The Veteran's alternative CUE challenge is that VA committed error by failing to consider and apply 38 C.F.R. § 4.16(b), and failed to refer the Veteran's claim for extraschedular consideration.  As explained above, the Board has found that the Veteran did not have any pending TDIU claims between his abandonment of such a claim in February 1999 (when the time period to respond to VA's request expired) and the April 2003 claim that led to the grant of a TDIU.  As such, the question before the Board is whether there was CUE in the August 2004 rating decision, wherein the RO granted a TDIU effective January 24, 2001 - the date the Veteran met a schedular TDIU, due to the claim that the RO failed to consider and apply 38 C.F.R. § 4.16(b), even though a referral for extraschedular consideration does not result in a grant of benefits.  

The August 2004 rating decision did not discuss the applicability of 38 C.F.R. § 4.16(b) or the possibility of referring the appeal for extraschedular consideration. 

The Court, however, has found that prior to reaching the question of whether 
referral of a case to C & P Director for extraschedular consideration for TDIU pursuant to 38 C.F.R. § 4.16(b) can constitute a "manifestly different outcome" of a prior final decision, a denial of CUE can be established based on a determination that the record of evidence is not undebatable that the appellant was unemployable due to his service-connected disabilities was arbitrary, capricious, an abuse of discretion, or otherwise contrary to the law, or supported by inadequate reasons or bases.  Evans v. McDonald, 27 Vet. App. 180, 186 (2014).  

In the instant case, the Board finds that the evidence of record at the time of the August 2004 rating decision did not show that it was "absolutely clear" or "undebatable" that the Veteran was unemployable due to his service-connected disabilities.  At the time of the August 2004 rating decision, the Veteran was in receipt of a 30 percent disability rating for mild ulnar neuropathy of the right upper extremity, 30 percent for right shoulder post-traumatic arthritis, and 20 percent for back injury to T11 and T12.  

The Veteran was not, and is not, service-connected for right upper extremity tremor.  In the February 2003 decision, the Board noted that the Veteran's current diagnosis was for mild ulnar neuropathy of the right upper extremity and granted service connection for "neurologic impairment of the right upper extremity."  At that time, the Board indicated that the Veteran's tremors were not part of that grant.  In a March 2003 rating decision, the RO established service connection for "mild ulnar neuropathy right upper extremity."  The Board notes, in passing, that as recently as August 2015, the Board found that the Veteran was service-connected for ulnar neuropathy of the right upper extremity, which did not include his tremor.  

The Board does not dispute that, per the Veteran's reports, he has been unemployed since January 1993.  

At the time of the August 2004 rating decision, various medical opinions were of record as to the Veteran's employability.  

In April 1991, Dr. T. Hoeke noted that the Veteran did not have too much ongoing pain or paresthesias, but did have a significantly limiting tremor, which was worse with any attempts at fine motor usage.  Dr. Hoeke found that such disability would restrict the Veteran from any occupations where frequent writing was a necessity.  Dr. Hoeke also noted that the Veteran was being seen by Dr. Hoehn (her opinion is discussed below), who was a "specialist in neuromuscular disorders."

In a December 1991 private medical opinion, Dr. M. Hoehn, a Clinical Professor of Neurology, determined that the Veteran had a severe tremor of the right hand, which made it virtually impossible for him to write legibly.  The physician diagnosed him with essential tremor, which had no known cause.  Dr. Hoehn found no evidence in her experience, in medical literature, or in consultation with the President of the International Tremor Association, that such tremor would have a possible relationship to the Veteran's in-service right shoulder injury.  

A January 1993 letter, from Dr. T. Hoeke, reported that the Veteran had a significant tremor of his right hand, which had progressed significantly in the past two years.  Dr. Hoeke found that the Veteran had lost much of his fine motor control secondary to this tremor and was unable to do any work, specifically close hand work or writing, which made him physically unable to perform his present job functional requirements with Hughes Aircraft.

An April 1993 letter, from Dr. T. Hoeke, reported to the Social Security Administration that the Veteran had a "disabling symptom is a right upper extremity/hand tremor" and that the "tremor is significantly limiting when he attempts any fine motor usage of his right hand and arm."

In a January 1996 neurological consultation, Dr. H.R. Reichman, a diplomate with the American Board of Neurological Surgery, found that the Veteran may have a mild ulnar neuropathy, as well as, a tremor, which he reported "doubt that the tremor is related to his thoracic outlet."

During an April 2001 VA examination, the Veteran reported that he had been discharged from his employment as an engineer due to being unable to use his right hand due to a constant fine tremor and that he could not write.

In June 2003, the RO also obtained SSA records.  An April 1993 SSA Disability Determination and Transmittal indicated that the Veteran had a primary diagnosis of "Essential Tremor - RUE [right upper extremity]" and no secondary diagnosis.

Also of record at the time of the August 2004 rating decision, were private medical opinions, by Dr. C.N. Bash, a neuro-radiologist.  In January 2004, Dr. Bash reported that the Veteran's cervical nerve damage was secondary to his service parachute injuries and cervical spine intervertebral degenerative disc syndromes.  Dr. Bash indicated that "[i]t is also my opinion that this patient has been unemployable since 28 Jan 1993 when he was unable to work at Hughes aircraft due to the severity of his cervical spine neurologic loss which should have been rated at a high level under VA codes 5285-5295 with unemployability in 1993 based on the clinical (Dr. Hoke's [sic.] three attached letters) and imaging data at the time."  Dr. Bash then cited to a 1993 letter from Dr. Hoke indicating "...He has lost much of his fine motor control secondary to his tremor...which makes him physically unable to perform his present job functional requirements..."  Dr. Bash further found that CT scans were consistent with new neurologic problems in 1993 which made the Veteran unemployable.

In May 2004, Dr. Bash submitted an additional medical opinion clarifying that he believed that the Veteran's radicular arm problems "(tremor, weakness, decreased range of motion) are compatible with his cervical level of disease."  Dr. Bash reported that the Veteran had to "terminate his work at Hughes aircraft on 31 Jan 1993 due to your [sic.] arm and hand limitations, which in my medical opinion were all caused by his service neurologic spine injury."  The Board notes that there is an additional, unsigned Dr. Bash opinion of record from 2007, and additional other medical opinions of record, but such opinions were not of record at the time of the August 2004 rating decision.  

The evidence of record at the time of the August 2004 rating decision is debatable as to whether the Veteran was unemployable due to his service-connected disabilities.  The majority of evidence listed above, generally other than the opinions of Dr. Bash, documented medical findings that the Veteran was unemployable due to his non-service-connected right upper extremity tremor only, which multiple neurological specialists finding it was not related to the Veteran's service.  

To the extent that Dr. Bash's opinions could be weighed against the other medical opinions of record, the Board finds that this does not constitute CUE.  Allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.  See 38 U.S.C.A. § 5109A; 38 C.F.R.  § 3.105(a); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993).  In this case, the determination of whether to refer a TDIU claim for extraschedular consideration is based upon a weighing and evaluation of the evidence of record.  Even if the Board determined that the RO failing to refer the claim for extraschedular consideration was indeed an error of law, the Board cannot find that it would have manifestly changed the outcome of the appeal, since it is the Director of Compensation and Pension Service who makes the initial determination regarding the applicability of extraschedular criteria.  

The Board further notes that the Veteran's allegations as to unemployability have been in regards to his non-service-connected right upper extremity tremor, not his service-connected disabilities.  The majority of the medical evidence similarly ties the Veteran's unemployment with his non-service-connected tremor.  Indeed, even Dr. Bash's January 2004 medical opinion indicated that unemployability was due to the non-service-connected right upper extremity tremor.  Dr. Bash's May 2004 letter was the only indication of record regarding unemployability due to neurological disability, other than non-service-connected tremor.  Even then, Dr. Bash's later May 2004 opinion did not specify what arm and hand limitations caused the Veteran to have to stop working in January 2003, and did not refute his prior finding that unemployability was due to the right upper extremity tremor.  That letter was received by VA after the January 24, 2001 effective date of the TDIU.

Referral for extraschedular consideration for unemployability is only necessary if a veteran is unemployable due to his service-connected disabilities, but fails to meet the percentage standards.  Here, the evidence of record at the time of the August 2004 rating decision showed that the Veteran's unemployability was due to his non-service-connected disability, with the first and only indication that his service-connected right upper extremity mild ulnar neuropathy might be involved in the Veteran's unemployability was not received until May 2004, after the January 24, 2001 effective date of TDIU on a schedular basis.  

As such, extraschedular consideration of a TDIU was not necessary as the evidence associated with the claims file did not support finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; rather, the evidence showed such unemployability was due to the non-service-connected right upper extremity tremor.  

The above discussion of the evidence and arguments reflects that a finding of CUE in the August 2004 rating decision is not warranted.  To the extent that the Veteran and his representative contend that the RO's failure to obtain SSA records in 1993 warrants a finding of CUE, such an argument must fail as a matter of law.  Even assuming, without deciding, that the RO violated its duty to assist by not seeking records, "[t]he requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim."  Cook v. Principi, 318 F.3d 1334, 1346   (Fed. Cir. 2002).  Thus, the argument that the RO's failure to obtain records warrants a finding of CUE must be rejected.  

Additionally, to the extent that the Veteran's agent has claimed that VA failed in its duty to assist the Veteran in 1993, under 38 U.S.C.A. § 5103(a), the Board notes that that code section was not adopted until November 2000 and would not have been applicable in 1993.

Therefore, neither the Veteran's contentions, nor the Board's review of the record, suggests that, based on the record and law that existed at the time of the August 2004 rating decision, the correct facts, as they were known at the time, were not before the adjudicator.  Additionally there is no indication that the statutory or regulatory provisions extant at the time were incorrectly applied, or that any error was "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made.  An effective date earlier than January 24, 2001, for the award of a TDIU, on the basis of CUE in an August 2004 rating decision, based on the distinct theories discussed above, is denied.



ORDER

An effective date earlier than January 24, 2001, for the award of a TDIU, on the basis of CUE in an August 2004 rating decision, based on the distinct CUE challenge that an earlier 1998 TDIU claim remained open and pending and thus was not an abandoned claim, is denied.

An effective date earlier than January 24, 2001, for the award of a TDIU, on the basis of CUE in an August 2004 rating decision, based on the distinct CUE challenge that VA committed error by failing to consider and apply 38 C.F.R. § 4.16(b), is denied.



____________________________________________
DEBORAH W. SINGLETON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs