Citation Nr: 1753329 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-06 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether a May 1975 rating decision that awarded a 30 percent evaluation assigned for bipolar disorder previously evaluated as schizophrenia, effective April 11, 1975, contained clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. At his request, the Veteran was scheduled for a Travel Board hearing in February 2017. Because the Veteran failed to report to the hearing, the Board request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704 (d) (2017); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). FINDINGS OF FACT 1. In a May 1975 rating decision, the RO granted service connection for what it identified at the time as schizophrenia, and assigned an initial 30 percent disability rating, effective April 11, 1975, the day after the Veteran's separation from service. 2. The correct facts, as they were known in May 1975, were accurately reported, and the statutory or regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW The July 2005 rating decision that assigned an initial 30 percent rating for schizophrenia did not contain CUE. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 VA has several duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). These provisions are not, however, applicable to a CUE claim. Livesay v. Principi, 15 Vet. App. 165 (2001). II. The Merits of the Claim VA regulations provide that a determination on a claim by the agency of original jurisdiction (AOJ) of which the claimant is properly notified is final if an appeal is not perfected as prescribed, in the absence of CUE. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.105 (a), 20.302, 20.1103. To establish a valid CUE claim, a claimant must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). CUE is a very specific and rare kind of error of fact or law that compels the conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated. Eddy v. Brown, 9 Vet. App. 52 (1996). When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity, and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Fugo, supra. In Damrel v. Brown, 6 Vet. App. 242 (1994), the United States Court of Appeals for Veterans Claims (Court) explained that in order for clear and unmistakable error to exist: (1) "[e]ither the correct facts, as they were known at that 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 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. Damrel, 6 Vet. App. at 245 (quoting Russell, supra); see Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (to prove the existence of CUE as set forth in 38 C.F.R. § 3.105 (a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision). A claim of CUE is a collateral attack on an otherwise final rating decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). Because of the nature of the challenge to the rating decision, there is a presumption of validity which attaches to that final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. See Fugo, 6 Vet. App. at 44. Therefore, an appellant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a veteran who seeks to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). An alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). The fact that medical knowledge was not advanced to its current state may not form the basis for a valid claim of CUE, because it is premised upon facts that were not then of record. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). Further, a disagreement with how the RO evaluated the facts is inadequate to raise a claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In addition, opinions from the Court that formulate new interpretations of the law subsequent to a VA decision cannot be the basis of a valid CUE claim. Brewer v. West, 11 Vet. App. 228, 234 (1998). Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. Here, a May 1975 rating decision granted service connection for chronic, moderate, schizophrenia of an undifferentiated type and assigned a 30 percent disability evaluation, effective April 11, 1975. The Veteran was assigned a 100 percent disability rating, effective March 7, 1983, and asserts that he was entitled to this disability rating effective April 11, 1975. He contends that the assignment of the initial 30 percent rating was CUE. The Veteran contends that he is currently 100 percent disabled and has been so since his separation from military service. The Veteran's argument is an allegation that the rating board improperly weighed and evaluated the evidence. Such an allegation may not support a finding of CUE. Fugo at 43-44 (1993). Prior to November 7, 1996, the rating schedule provided that schizophrenia, chronic undifferentiated type, resulting in active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce complete social and industrial inadaptability warranted a 100 percent rating, and with lesser symptomatology such as to produce severe impairment of social and industrial adaptability warranted a 70 percent rating. Schizophrenia, chronic undifferentiated type, resulting in considerable impairment of social and industrial adaptability warranted a 50 percent evaluation, and schizophrenia resulting in definite impairment of social and industrial adaptability warranted a 30 percent evaluation. 38 C.F.R. § 4.132, Diagnostic Code 9204 (effective prior to November 7, 1996). The record extant in May 1975 included no objective medical evidence that the Veteran's schizophrenia resulted in active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce complete social and industrial inadaptability. According to a December 1974 mental health assessment conducted during his military service (prior to separation in April 1975), the examining specialist determined: It is felt at the present time that the patient's level of functioning, demonstrates moderate disturbances of thinking and affect, manifested by flattening of affect, depressed affect, paranoid ideation and ideas of reference, as [well] as possible hallucinations. He shows only mild disturbances of activities of daily living. Here, the Veteran specifically does not assert that the correct facts were not before the adjudicators at the time of the VA rating decision in May 1975. He does assert that the RO erred by failing to properly apply the provisions of the rating criteria in effect in 1975, and that a rating higher than 30 percent was warranted After a review of the evidence of record and applying the medical evidence of record to the rating criteria that was in effect in 1975, the Board is unable to identify an error in fact or law that compels the conclusion, to which reasonable minds could not differ, that a higher rating should have been assigned but for the error. The Board finds that even assuming arguendo that there were an error, it was not undebatable and would not have "manifestly changed the outcome" of the Veteran's claim. Thus the Board concludes there is no CUE in the rating decision with respect to the assignment of an initial 30 percent rating for schizophrenia. In essence, the Board finds that the Veteran essentially disagrees with the weighing and evaluation of the evidence considered in the May 1975 rating decision. In so finding, the Board observes that the Veteran's argument is essentially a challenge to how the facts were weighed in the decision. This cannot form the basis of a CUE claim. The Veteran argues that the evidence showed that he had a disability that should have been assigned a higher rating. This is an attack on how the facts were weighed. In view of the medical findings in the December 1974 examination as discussed above, it cannot be said that the Veteran manifested active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce complete social and industrial inadaptability to warrant a 100 percent rating, or manifested lesser symptomatology that would produce severe impairment of social and industrial adaptability to warrant a 70 percent rating, or even that considerable impairment of social and industrial adaptability was undebatably present at the time of the RO's rating decision in May 1975. While the Board acknowledges that the Veteran did experience psychiatric symptoms in service, the December 1974 evaluation found the Veteran's symptoms to be mild to moderate in severity. There was no evidence of record as of May 1975 that he experienced active psychotic manifestations that produced complete social and industrial inadaptability, nor was undebatable evidence of severe or even considerable impairment of social industrial adaptability present at the time of the May 1975 decision. The Veteran himself, on his April 1975 claim for service connection, identified his schizophrenia as "moderate." Thus, the Board concludes that there is no CUE in the rating decision with respect to the assignment of the initial 30 percent rating for schizophrenia. Although the Veteran now honestly believes that a mistake was made in the May 1975 rating decision, his arguments amount to a dispute with the weighing and evaluation of the evidence then of record. This is the type of allegation that cannot, as a matter of law, form the basis for CUE. A mere disagreement with how the RO evaluated the facts before it does not constitute an allegation that is adequate to raise a CUE claim. Luallen, 8 Vet. App. at 96. The Veteran has raised questions concerning the weighing or interpretation of the evidence, but he has not provided reasons as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result of the previous adjudication would have been manifestly different but for an error. Instead, the Veteran's arguments amount to a disagreement with how the RO weighed or evaluated the facts, and, therefore, cannot be the basis of a valid claim of CUE. Here, the Board finds that at the time of the May 1975 rating decision, the RO considered the pertinent evidence of record that weighed in favor and against the Veteran's claim and reached a determination assigning a 30 percent disability rating. Therefore, in light of the relevant laws and facts presented at the time of the determination, the Board finds that this determination was not clearly and unmistakably erroneous. Bustos, Hines. Accordingly, the Board finds that there was no CUE in the May 1975 rating decision, and the claim must be denied. ORDER As there was no CUE in the May 1975 rating decision granting service connection for schizophrenia, now characterized as bipolar disorder, and assigning a 30 percent disability rating, the appeal is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs