Citation Nr: 1801458 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-07 965A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether there is clear and unmistakable error (CUE) in the December 1981 decision of the Board of Veterans' Appeals finding that the reduction of the evaluation of the Veteran's service-connected schizophrenia from 100 percent to 70 percent was proper. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1951 to March 1956. He died in December 2001. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) based upon an inferred motion by the appellant during the July 2010 hearing that sought a revision of a December 1981 Board decision on the basis of CUE. See 38 U.S.C. § 7111 (2012); 38 C.F.R. § 20.1400 (2017). The Board notes that the appellant specified during a July 2010 hearing (on a separate matter) that she sought revision of the June 1980 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina. That rating decision was affirmed by the Board in December 1981. In its November 2010 remand, the Board directed the RO to issue a decision regarding the appellant's assertion of CUE in the June 1980 decision. In a subsequent statement of the case dated in November 2011, the RO correctly noted that the June 1980 rating decision was subsumed by the December 1981 Board decision when the Board affirmed the RO's prior determination. Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998). Thus, the RO has no jurisdiction over the CUE claim, and the Board will proceed with its adjudication of the issue of whether there was CUE in its December 1981 decision finding that the reduction of the evaluation of schizophrenia was proper. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). FINDINGS OF FACT 1. In a December 14, 1981 decision, the Board affirmed the reduction of the evaluation of the service-connected schizophrenia from 100 percent to 70 percent. 2. The appellant has not shown that the applicable statutory and regulatory provisions existing at the time of the December 1981 Board decision affirming the reduction of the evaluation of the service-connected schizophrenia were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. CONCLUSION OF LAW The Board's December 1981 decision does not contain CUE regarding the affirmation of the reduction of the evaluation of the service-connected schizophrenia from 100 percent to 70 percent. 38 U.S.C.A. § 7111 (West 2012); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The United States Court of Appeals for Veterans Claims (Court) has held that reversal or revision of prior decisions 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 Veterans Claims Assistance Act of 2000 (VCAA) and consequently, the notice and development provisions of the VCAA do not apply in CUE adjudications. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). Factual Background and Analysis The appellant contends that a December 1981 Board decision was clearly and unmistakably erroneous in finding that the reduction of the evaluation of the Veteran's service-connected schizophrenia from 100 percent to 70 percent, effective September 1, 1980, was proper. A final decision by the Board is subject to revision on the grounds of clear and unmistakable error. If evidence establishes such error, the prior Board decision shall be reversed or revised. See 38 U.S.C.A. § 7111; 38 C.F.R. §20.1400. The review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b). Thus any new evidence added to the file, as distinguished from argument, cannot be considered. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal that, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. See 38 C.F.R. § 20.1403(b), (c); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). CUE is established when all the following conditions have been met: (1) Either the correct facts were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the alleged error is "undebatable," not merely a "disagreement as to how the facts were weighed or evaluated"; and (3) the error "manifestly changed the outcome" of the prior decision. King v. Shinseki, 26 Vet. App. 433, 439 (2014) ("A manifest change is not, for example, whether the regional office would have been required to send the medical report back to [the doctor] for clarification, but rather that [the appellant] undoubtedly would have been granted a disability rating greater than 10% for his [disability].") (emphasis added); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see Bustos, 179 F.3d at 1380-81 (expressly adopting the "manifestly changed outcome" standard). Examples of situations that are not CUE include: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the veteran with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403 (d). CUE is a very specific and rare kind of error. It is the kind of error to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). The mere misinterpretation of facts or failure to fulfill the duty to assist does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel, 6 Vet. App. at 245 (holding that a valid CUE motion requires that the Veteran assert more than a disagreement as to how the facts were weighed or evaluated). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e). The United States Court of Appeals for Veterans Claims (Court) review of a Board decision finding no CUE in a prior, final RO or Board decision is limited to determining whether the Board's finding was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 38 U.S.C. § 7261 (a)(3)(A), and whether it was supported by an adequate statement of reasons or bases, 38 U.S.C. § 7104(d)(1). See King, 26 Vet. App. at 439; Eddy v. Brown, 9 Vet. App. 52, 57 (1996). The motion to review a prior final Board decision on the basis of clear and unmistakable error must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non- specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). Reviewing the July 2010 hearing, the Board cannot distinguish any specific allegations of error on the part of the RO in determining that it was proper to reduce the evaluation of the service-connected schizophrenia from 100 percent to 70 percent. The appellant's general contention is that the Veteran had not shown any improvement at the time of the June 1980 rating decision, and that thus the reduction was improper. However, neither during the hearing nor at any point in the over seven years since that hearing has the appellant set forth any specific allegations regarding errors that the RO, and by extension the Board, made in the June 1980 and December 1981 decisions, respectively. Nevertheless, as the Board itself inferred a claim of CUE in the July 2010 hearing, it will proceed with a review of the December 1981 decision in order to determine if there was a CUE in the finding that it was proper to reduce the disability evaluation for schizophrenia. In its June 1980 decision, the RO reduced the evaluation of the service-connected schizophrenia from 100 percent to 70 percent, effective September 1, 1980, on the basis of a September 1979 VA examination administered in connection with the Veteran's request for vocational rehabilitation services through VA. Specifically, the RO highlighted the fact that the Veteran's psychotic and manic symptomatology abated with continued medication in the form of lithium carbonate and haldol, a regimen which began in 1979 following a manic episode. Moreover, the RO noted that the September 1979 examiner stated that the Veteran had several years of steady employment in the past while diagnosed with schizophrenia. Accordingly, the RO found that the Veteran's mental condition was only moderately severe in nature and did not result in complete social and industrial inadaptability, as would be necessary for a 100 percent rating; thus, the rating was reduced from 100 percent to 70 percent. This rationale was echoed by the Board in its December 1981 decision. Before reviewing whether there was CUE in the Board's December 1981 decision that it was proper to reduce the evaluation of the schizophrenia to 70 percent, it is necessary to detail the regulations regarding the reduction of total disability ratings as they existed as the time of the Board's decision. In 1980, the effective regulation stated as follows: Where the reduction in evaluation of 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 thereof, and will be given 60 days for the presentation of additional evidence. 38 C.F.R. § 3.105(e) (1980) (current version at 38 C.F.R. § 3.105(e) (2017)). The Board notes, in relevant part, that 38 C.F.R. § 3.105(e) currently requires that any reduction of an evaluation be preceded by a proposed rating decision and that the Veteran be given 60 days to submit any additional evidence prior to a final rating decision effectuating the reduction. However, as these proposal procedures were not in place at the time of the RO's June 1980 decision, and the RO complied with its obligations with regards to establishing the effective date as the last day of the month in which a 60-day period from date of notice to the payee expires, i.e. September 1, 1980, the Board concludes that it was correct in affirming the RO's June 1980 decision insofar as the procedural requirements of 38 C.F.R. § 3.105(e) were followed. That being stated, the Board must also examine whether it applied the proper evaluation criteria in determining that the disability rating should have been reduced effective September 1, 1980. The pertinent laws and regulations at the time of the December 1981 decision were essentially the same as they are now. Specifically, under 38 C.F.R. § 3.343(a) for total disability ratings, when warranted by the severity of the condition, will not be reduced, in the absence of clear error, without examination showing material improvement in the condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending re-examination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343 (1980). In cases involving a change in medical findings or diagnosis, such cases will be handled so as to produce the greatest degree of stability of evaluations consistent with the laws and regulations governing disability compensation. It is essential that the entire record of examination s 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, besides examinations, 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 illness. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g., residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examination reflecting the results of bed rest. Moreover, though material improvement in the condition is clearly reflected, consideration must be given to whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When there is a change in diagnosis, caution must be exercised in the determinations as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibility of a diagnosis entity independent of the service-connected disability. 38 C.F.R. § 3.344 (a) (1980). If doubt remains, after according due consideration to all the evidence developed, as indicated in 38 C.F.R. § 3.344 (a), the rating will continue in effect but the rating agency may determine the time that will be allowed to elapse before re-examination is to be made. 38 C.F.R. § 3.344 (b) (1980). The provisions of 38 C.F.R. § 3.344(a) and (b) apply to ratings that have continued for long periods at the same level (5 years of more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c) (1980). The Veteran was assigned the 100 percent rating for his schizophrenia pursuant to 38 C.F.R. § 4.132, Diagnostic Code 9204, pertaining to chronic undifferentiated type schizophrenia. Pursuant to Diagnostic Code 9204 as it read at the time of the June 1980 rating decision, a 100 percent rating was awarded for active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce complete social and industrial inadaptability. A 70 percent rating was awarded for lesser symptomatology such as to produce severe impairment of social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9204 (1980) (current version at 38 C.F.R. § 4.130, Diagnostic Code 9201 (2015)). In the present case, the reduction of the evaluation of the schizophrenia was made upon the basis of a September 1979 VA examination which found that the Veteran's symptomatology was mitigated significantly by his continuous use of medication. The examiner remarked on the examination report that the Veteran was started on lithium carbonate in the fall of 1978, and had a manic episode in early 1979 after which Haldol was added to his regimen, but there are no medical records documenting this course of treatment. In fact, there are no additional medical records showing what treatment, if any, the Veteran received for his schizophrenia prior to the June 1980 decision. Chronologically, the next available medical record is a September 1971 VA examination in which the schizophrenia diagnosis was continued and the examiner found that the impairment resulting from it was marked in severity. Following the RO's June 1980 rating decision, the Veteran submitted a notice of disagreement dated in January 1981 in which he contended that he was still receiving treatment for schizophrenia through VA and was not working at the time, nor had he been working for several years in the past as set forth by the VA examiner. He reiterated these statements in his formal appeal of the RO's decision (VA Form 9), which was dated in March 1981. Upon consideration of the applicable regulations and law as well as the evidence available when the reduction of the disability rating for the service-connected schizophrenia was affirmed in December 1981, the Board concludes that there is no basis on which to find that there was CUE in its previous decision. Although the Veteran asserted that he was still receiving continuous treatment for his schizophrenia after the reduction was put into effect and had not been able to obtain a job in many years despite looking for one, there was no evidence available in the record at the time of the December 1981 decision which specifically refuted the RO's June 1980 determination that the Veteran's schizophrenia symptomatology had been mitigated through his use of prescribed medication. Indeed, the only available evidence at the time of the Board's decision was the September 1979 examination on which the RO relied in determining that a reduction was proper. While the appellant has not specifically asserted that additional evidence was available in the record at the time of the Board's December 1981 decision which would contradict the findings of the September 1979 VA examiner, the Board notes that any asserted failure to obtain missing records would not constitute CUE as this would be an asserted failure of the duty to assist. See Crippen, 9 Vet. App. at 424. Ultimately, the appellant's assertion that the final decision of the Board to affirm the reduction of the rating for schizophrenia was in error is a dispute about how the evidence in the case had been weighed at the time of the December 1981 decision, which does not rise to the level of CUE. See Hillyard v. Shinseki, 24 Vet. App. 343, 349 (2011); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The Board in December 1981 found that there was sufficient evidence which showed that the schizophrenia symptomatology had improved such that it did not completely preclude social and industrial adaptability as reflected in the positive reaction to medication, and there was no evidence before it which tended to show otherwise. Although it is possible that a different judge reviewing the same facts could have reached a different decision, reasonable minds could disagree, and the appellant has not presented any evidence of an undebatable error in the December 1981 Board Decision of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made. Again, the Board emphasizes that it is sympathetic to the appellant and is grateful for the Veteran's honorable service. However, as the Court stated in King v. Shinseki, "[a]lthough the Court is sympathetic to [the appellant's] arguments raised on appeal, revision of a final . . . . [Board] decision is an extraordinary event." 26 Vet. App. at 442. (emphasis added). "The Court cannot review a CUE motion under the same standard by which it reviews matters on direct appeal." Evans v. McDonald, 27 Vet. App. 180, 186 (2014) (en banc). Neither can the Board. Rather, "there will be times when the Court [and the Board] arrives at a different conclusion when reviewing a motion to revise a prior, final decision than it would have had the matter been reviewed under the standards applicable on direct appeal." Id. The Veteran, at the time of the December 1981 Board decision, "was afforded the benefit of the full panoply of rights that exist when a claim [was] initially adjudicated, and principles of finality preclude him from invoking those rights at this time." Id. The Board, like the Court in that case, cannot say whether it would reach the same result had this case come before it on direct appeal. Therefore, on the evidence that was of record at the time of the December 1981 Board decision, and the law as it stood at that time, the Board finds that the December 1981 decision did not contain CUE as to the reduction of the evaluation of the service-connected schizophrenia from 100 percent to 70 percent. The motion is accordingly denied. ORDER The motion to revise the Board's December 1981 decision that affirmed the reduction of the evaluation of the service-connected schizophrenia from 100 percent to 70 percent is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs