Citation Nr: 18141108 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-15 058 DATE: October 9, 2018 ORDER The motion to revise or reverse the June 1973 rating decision rating decision assigning two separate 10 percent rating for residuals of encephalitis, characterized as headaches and sensory residuals, on the basis of CUE is denied. FINDING OF FACT The June 1973 rating decision that assigned two separate 10 percent ratings for residuals of encephalitis, characterized as headaches and sensory residuals, was not clear and unmistakably erroneous. CONCLUSION OF LAW The June 1973 rating decision that assigned two separate 10 percent ratings for residuals of encephalitis, characterized as headaches and sensory residuals, was not clear and unmistakable error. 38 U.S.C. §§ 1110, 1131, 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105(a), 3.344, 3.500(1)(b); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 8000, 8100 (1973). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to February 1973. In June 2011, the Board dismissed the Veteran’s claim for an earlier effective date for the grant of service connection for a cognitive disorder not otherwise specified and major depression, on the basis that it did not have jurisdiction to consider a free-standing claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Of note, the Board also specifically determined that there were no earlier informal or formal communications by the Veteran concerning a mental disorder that could be construed as an earlier claim for service connection. However, while the Veteran’s earlier effective date claim was not adjudicated on the merits, to the extent that the Board’s prior findings are binding on this appeal, the Board observes that in June 1973, the RO rated the Veteran’s residuals of encephalitis under 38 C.F.R. § 4.124a, DCs 8000 – which allows for the assignment of a separate rating for impairment of mental function regardless of whether a specific claim for a psychiatric/mental disorder due to residuals of encephalitis was filed. Therefore, as reflected herein, the Board has recharacterized the issue as entitlement to a separate compensable rating for mental impairment (inclusive of psychiatric manifestations) as a residual of encephalitis. Clear and Unmistakable Error Whether the June 1973 rating decision that assigned two separate 10 percent rating for residuals of encephalitis, characterized as headaches and sensory residuals, was clearly and unmistakably erroneous The Veteran asserts that the June 1973 rating decision was the result of a clear and unmistakable error (CUE) because the RO failed to consider his cognitive and psychiatric dysfunction, to include memory loss and speech impairment, which warrants a separate compensable rating. As such, given that his acquired psychiatric disability was secondary to his encephalitis and was clearly and unmistakably evidenced in the record at the time of the June 1973 rating decision, the Veteran contends that the effective date for the grant of service connection should be February 1973. Under VA regulations, a RO decision that has become final generally may not be reversed or amended in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a); 38 U.S.C. §§ 5108, 7105(c). There is a three-prong test for determining whether a prior determination involves CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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 of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 40 (1993). Further, CUE is a very specific and rare kind of “error.” It is the kind of error, of 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 have been manifestly different but for the error. Thus, even where 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 (1993). Based on the available evidence, the Board concludes that there was no CUE in the RO’s June 1973 rating decision for failing to assign a separate compensable rating for mental/psychological impairment. In the June 1973 rating decision, the Veteran was assigned two separate ratings for headaches and sensory dysfunction as residuals of encephalitis under 38 C.F.R. § 4.124a, DCs 8000, 8100, respectively. Normally, psychiatric disorders are rated under a separate diagnostic code. See 38 C.F.R. § 4.130. However, under DC 8000, “residuals” related to encephalitis “may be rated from 10 percent to 100 percent in proportion to the impairment of…mental function.” Further, in determining whether a separate rating is warranted for impaired mental function, DC 8000 instructs the rater to “consider especially” symptoms such as psychotic manifestations and speech disturbances. Here, according to the June 1973 decision, the RO noted that after his period of convalescence during service, the Veteran returned to active duty “without any demonstrable neurological residuals,” including the fact that he had lost his stuttering phenomenon entirely. Further, the RO indicated that the Veteran’s separation examination was negative for any neurological or psychiatric impairment. Moreover, the RO stated that in his post-service May 1973 VA examination, the examiner determined that the Veteran exhibited “some headaches…weakness with exertion…reduced sensation to pin, touch, vibration on right side.” In fact, the Veteran was “alert and cooperative” during his May 1973 VA examination, and the examiner found that the Veteran’s prior psychiatric symptoms had resolved. Therefore, while the Veteran had “some residual problems such as difficulty recognizing friends,” the RO determined that there was no evidence of symptoms such as psychotic manifestations and speech disturbances. In the Board’s view, the June 1973 rating decision assigning two separate 10 percent ratings under DCs 8000 and 8100, was based on the factual finding that the Veteran demonstrated sufficient residuals of encephalitis that included sensory limitations and headaches. Further, based upon comprehensive neurological and psychiatric testing, the RO explicitly determined that there was insufficient impairment to the Veteran’s mental functioning to warrant a separate compensable rating. While the Board recognizes that the Veteran may disagree with this finding, an assertion of CUE does not allow the Board to reevaluate the evidence that was in VA’s possession at the time the rating decision was issued. Rather, the correct course of action would have been to appeal this decision by submitting a notice of disagreement within a year of receiving it.   For the reasons set forth above, the Board finds that the June 1973 rating decision was not CUE, and a revision of the June 1973 rating decision is not warranted. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel