Citation Nr: 1800585 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-15 381A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the February 2005 rating decision which assigned an effective date of September 24, 2002, for the grant of service connection for paranoid schizophrenia, contained clear and unmistakable error (CUE). REPRESENTATION Veteran represented by: Dr. Michael Brown WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to November 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2017. A transcript of that hearing is of record. FINDING OF FACT The Veteran's allegations of CUE in the February 2005 rating decision do not constitute CUE because they are disagreements with how the RO evaluated the evidence of record. CONCLUSION OF LAW The criteria for revision of the February 2005 rating decision on the basis of CUE are not met. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran's Claims Assistance Act does not apply to claims of CUE in prior rating decisions. See Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). As such, no further discussion of VA's duties to notify and assist is necessary. In a February 2005 rating decision, the Veteran was granted service connection, with a 100 percent disability evaluation, for his paranoid schizophrenia. A September 24, 2002 effective date was assigned. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the rating decision and decision became final. See 38 U.S.C. §§ 7104, 7105 (2012). Subsequently, the Veteran filed a freestanding claim for an earlier effective date for the grant of service connection for paranoid schizophrenia in February 2012. An April 2012 notification letter informed the Veteran that the only way to attempt to revise an effective date assigned in a rating decision that had become final was on the basis of CUE. Once a decision assigning an effective date has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). A final RO decision is not subject to revision in the absence of CUE in that decision. The Veteran's motion to revise the effective date based on CUE was received in May 2012. 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). Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or can any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo, 6 Vet. App. at 44. The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision by a VA RO. 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). Any claim of CUE must be pled with specificity. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE, the Veteran cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). Persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. The Veteran asserts that the RO should have assigned an effective date in 1983 or 1984, when he first filed a claim for service connection for a psychiatric disorder. The May 2012 statement alleged that there was CUE but did not specify the error that the RO committed. The statement noted that the RO mischaracterized the gender of one of the Veteran's physicians, and that the April 2012 letter informing the Veteran that a freestanding earlier effective date claim was not permitted failed to acknowledge that his claim had been previously denied in February 1983. Mischaracterization of gender does not rise to the level of CUE. Further, the April 2012 notice letter is not an adjudication. In a May 2017 hearing, the Veteran testified that because his paranoid schizophrenia was present during his period of active service, the February 2005 rating decision should have granted an earlier effective date of March 1984, the date of the Veteran's original request for service connection. He and his representative stated that the evidence of record was sufficient to show that his schizophrenia was related to service and that the Veteran had attempted several times prior to September 24, 2002, to secure service connection for his disability. At his hearing, the Veteran's representative stated that he did not know what the RO "... may or may not have done." Essentially, the Veteran and his representative have argued that the evidence of record at the time of the February 2005 rating decision showed that the Veteran had a psychiatric disorder in service, and that service connection should have been granted effective in 1984, when he first filed a claim. The Veteran has not asserted that the correct facts, as they were known at the time, were not before VA adjudicators. He also did not assert that the law extant at the time was incorrectly applied. In short, the Veteran and his representative disagree with how VA evaluated the facts in the February 2005 rating decision. Such an argument is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Accordingly, his arguments cannot sustain a finding that the February 2005 rating decision that assigned an effective date of September 24, 2002, constituted CUE. Accordingly, an earlier effective date is not warranted under this theory of entitlement. ORDER Revision of the effective date assigned in the February 2005 rating decision granting service connection for paranoid schizophrenia on the basis of CUE is not warranted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs