Citation Nr: 1620614 Decision Date: 05/20/16 Archive Date: 05/27/16 DOCKET NO. 15-04 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Evaluation of left knee strain/sprain (previously identified as torn meniscus, left knee) currently evaluated as 20 percent disabling. 2. Whether statements received December 14, 2012 constitute "new claims" for Clear and Unmistakable Error and Notice of Disagreement purposes. 3. Entitlement to a total disability rating based upon individual unemployability. (A motion involving whether there was clear and unmistakable error in the December 2011 decision of the Board of Veterans' Appeals (Board) denying an evaluation in excess of 10 percent for a knee disorder, and denying entitlement to service connection for cervical, right wrist and right elbow disabilities is addressed in a separate decision under a different docket number). ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 determination and an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa (hereinafter Agency of Original Jurisdiction)). The July 2013 determination notified the Veteran that December 14, 2012 statements he submitted were not a proper motion for clear and unmistakable error (CUE) in a March 1971 rating decision or a proper Notice of Disagreement (NOD) as to a December 2011 Board decision or a January 2012 rating decision implementing the Board decision. Evidence was associated with the claims file since the last RO adjudications in April 2015. In August 2015, the Veteran submitted a waiver of his right to have this evidence initially considered by the RO. Accordingly, the Board may consider this evidence in the first instance. See 38 C.F.R. § 20.1304 (2015). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (CAVC) held that a total disability rating based upon individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, the Veteran is unemployed, and the October 2014 VA examiner appears to indicate that he would be unable to work due to his knee disability. Accordingly, a claim of TDIU is raised by the record. In statements received July 20, 2015, the Veteran attempts to raise the issue of CUE on the grounds of the finality of the March 1971 rating decision, alleging that there is an unprocessed Notice of Disagreement pending. Each theory of CUE is an entirely separate and distinct claim. See Andre v. Principi, 301 F.3d 1354, 1362 (Fed. Cir. 2001). An allegation of CUE on the basis of finality has not been raised previously, therefore, may potentially be a separate CUE claim not previously considered. The AOJ's attention is directed towards the Veteran's intent to file a claim. See 79 Fed. Reg. 57660 (Sept. 25, 2014). 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). The issues of entitlement to an increased rating for left knee disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a December 1997 rating decision, the RO found there was no CUE in a March 1971 rating decision. The Veteran did not appeal this decision. 2. December 14, 2012, statements submitted by the Veteran again assert there was CUE in the March 1971 rating decision. The December 2012 assertion of CUE is based on the same grounds as the assertions giving rise to the December 1997 rating decision. 3. The January 2012 rating decision is the implementation of the Board's December 2011 rating decision and is not subject to appeal via a Notice of Disagreement. CONCLUSION OF LAW The Veteran's December 14, 2012 statements do not assert an independent theory of CUE as to the March 1971 rating decision, or constitute a valid Notice of Disagreement to the December 2011 Board decision or the January 2012 rating decision implementing it. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 3.104, 3.105, 20.1100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). As addressed below, the claim decided on appeal must be denied as a matter of law. As such, there is no duty on the part of VA to provide further notice or assistance pertaining to this claim. VAOPGCPREC 5-2004 (June 23, 2004) (VA not required to provide VCAA notice where there is no legal basis for claim or where undisputed facts render the claimant ineligible for the benefit sought) The Veteran appeals a July 2013 determination by the RO that found that December 14, 2012 statements by the Veteran did not constitute a valid or timely Notice of Disagreement (NOD), and did not constitute a new "claim" of CUE as to a March 1971 rating decision. As the procedural background is important in adjudicating this issue, the Board provides a summary of the extensive history leading up to the December 14, 2012 statement. In March 1971, the RO denied the Veteran's claim of service connection for a torn left knee meniscus. As noted in other adjudications since then, the Veteran did not appeal this decision. In March 1997, the Veteran requested revision of the March 1971 decision on the grounds of CUE. The Veteran asserted that CUE was present because the RO failed to properly apply facts before it, namely, that the Veteran's pre-service left knee injury was healed with no residuals, that he injured his knee in service, and that, at least, the injury in service aggravated a pre-existing injury. In a December 1997 rating decision, the RO found CUE was not present in the March 1971 rating decision. The Veteran did not appeal this decision and it became final. In a December 2003 rating decision, the RO granted service connection for the Veteran's torn left knee meniscus. The RO assigned an evaluation of 20 percent effective July 2001. The Veteran appealed the effective date and, in May 2004, the RO determined that there had been a pending appeal of an October 1995 rating decision denying the claim for the lack of new and material evidence. Thus, an effective date of August 1995 was established and a noncompensable evaluation was assigned for the period prior to July 2001. The May 2004 rating decision also denied revision of the March 1971 rating decision, after an April 2003 second allegation of CUE. The Veteran appealed the effective date established for his knee disability, as well as the noncompensable evaluation prior to July 2001 and the denial of a finding of CUE in the 1971 decision. In a January 2008 decision, the Board found no CUE in the March 1971 rating decision, it denied entitlement to a higher rating prior to July 2001, and it denied entitlement to an effective date earlier than August 1995. The Veteran appealed the first two issues to the CAVC. In an April 2010 Memorandum Decision, the CAVC found that the January 2008 Board decision should have dismissed the Veteran's appeal as to the issue of CUE, rather than deciding the issue on the merits, because the Veteran's April 2003 CUE claim was barred by the 1997 RO decision that adjudicated the same theory of CUE. Therefore, the CAVC vacated the Board decision with respect to CUE and dismissed the appeal. The CAVC also remanded to the Board the issue of the evaluation of the left knee disability prior to July 2001. Subsequently, a December 2011 Board decision granted a 10 percent evaluation for the left knee disability for the period prior to July 2001. In January 2012, the RO issued a rating decision implementing the Board's 10 percent evaluation of the left knee. On December 14, 2012, the Veteran submitted the statements at issue in this appeal. The December 2012 statements express disagreement with the Board Decision as to the 10 percent evaluation of the left knee, and the January 2012 rating decision implementing it. The statements also once again assert CUE in the March 1971 rating decision on the basis that there was a failure to review and apply pertinent facts. The Veteran appealed the December 2011 Board decision to the CAVC. In an August 2013 memorandum decision, the CAVC affirmed the Board decision. The Veteran appealed the CAVC decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit), which affirmed in part the CAVC decision, and dismissed the remainder of the appeal. With respect to the CUE motion, while the Veteran's December 14, 2012 statements contain numerous assertions, at their core, the Board finds that they are essentially assertions that the March 1971 rating decision was erroneous in its factual determinations and applications of law to fact. This is nothing more than a repackaging of the CUE motion made in March 1997, and brought again in April 2003. Even the Veteran's assertion that his discharge documents present an erroneous reason for separation is not a separate CUE motion, but rather, an attack on the interpretation of the facts that were present at that time. Additionally, his Form DD-214 and the character of his discharge were already raised in support of the 1997 CUE motion. Thus, his argument in the December 14, 2012 statements that discharge documents apply the wrong United States Army regulations is not an independent CUE theory. Accordingly, the motion for CUE as to the March 1971 rating decision is barred by res judicata, and therefore, the Veteran's appeal must be dismissed. Link v. West, 12 Vet. App. 39, 44 (1998) ("Under the principle of res judicata, '[o]nce there is a final decision on the issue of [CUE] . . . that particular claim of [CUE] may not be raised again.'" (quoting Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc)). With respect to the assertion that the December 14, 2012 statements are a proper Notice of Disagreement, these statements are, in part, directed to the Board's December 2011 decision. The Board is, thus, treating this as an assertion of CUE as to the December 2011 Board decision. The Board notes that a response to such motion is addressed in a Board decision to be issued separately. Otherwise, the December 2012 statements are not a proper notice of disagreement as to the rating decision because the rating decision is merely implementing the Board decision. Therefore, the rating decision was merely an administrative act, not an adjudication. Accordingly, the appeal as to this issue is dismissed. ORDER The appeal as to the December 14, 2012 statements submitted by the Veteran is dismissed. REMAND The Board finds that further development is required prior to adjudicating the claim for an increased rating for left knee disability and entitlement to TDIU. See 38 C.F.R. § 19.9. As noted in the Introduction, the Board has determined that entitlement to a TDIU has been raised by the record and is therefore on appeal. The AOJ, thus, has not developed or adjudicated the issue of a TDIU in the first instance, and the Veteran has not been provided with VCAA notice with respect to the issue. Therefore, the Board finds it necessary to remand for those purposes. The Board notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Thus, the Board finds that additional examination describing the functional effects of the Veteran's service-connected left knee disability on his vocational activities. Additionally, the examiner will be requested to reconcile potentially conflicting clinic findings. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should issue a VCAA compliant notice with respect to entitlement to a TDIU. The AOJ should conduct any indicated development. 2. Schedule the Veteran for an appropriate examination(s) to assess the nature and severity of the Veteran's left knee disability which includes the functional effects of the service-connected left knee disability on his vocational activities. All pertinent medical records should be made available to the VA examiner for review. The appropriate Disability Benefits Questionnaire (DBQ) pertaining to knee and TDIU examinations should be filled out for these purposes, if possible. In addition to completing the DBQ, the examiner is requested to comment on whether there is any medical reason to accept the clinic findings in October 2014 VA treatment records (left knee flexion limited to 60 degrees and extension limited 10 degrees) as being accurate in light of the entire evidentiary record, including consideration of the observations of the October 2014 VA Compensation and Pension examiner. A rationale for all requested opinions must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner must provide a complete explanation stating why this is so. 3. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative, if any, should be furnished with a supplemental statement of the case and an appropriate period of time to respond. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs