Citation Nr: 18146421 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-31 360 DATE: October 31, 2018 ORDER The motion for reversal or revision of the January 13, 2015 Board of Veterans’ Appeals (Board) decision that denied an effective date prior to April 30, 2003, for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In a final decision dated January 13, 2015, the Board awarded an effective date of April 30, 2003, for the award of a TDIU, but denied any earlier effective date. The moving party was provided with a copy of the decision and did not appeal the Board decision to the United States Court of Appeals for Veterans Claims (Court). 2. The moving party has not alleged an error of fact or law in the January 13, 2015, Board decision that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error. CONCLUSION OF LAW Clear and unmistakable error (CUE) in the Board’s January 13, 2015 decision that denied an effective date prior to April 30, 2003, for the award of a TDIU has not been established. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, had active service from June 1979 to September 1980. This matter is currently before the Board on the moving party’s June 2015 motion for revision or reversal on the grounds of CUE in the January 13, 2015 Board decision that denied an effective date prior to April 30, 2003, for the award of a TDIU. 1. Whether there was CUE in a January 13, 2015 (Board) decision that denied an effective date prior to April 30, 2003 for the award of a TDIU. Applicable Caselaw, Statutory, and Regulatory Provisions A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE 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). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 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 which, 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 clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the 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 that time were incorrectly applied; (2) the error must be “undebatable” and of 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 CUE must be based on 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. 310 (1992). 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 moving party 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 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). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision. 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Discussion The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). In the present case, the moving party alleges CUE in a January 13, 2015, Board decision that denied an effective date prior to April 30, 2003, for the award of a TDIU. The pertinent laws and regulations at the time of this decision were similar, if not essentially the same, as they are now. A TDIU is a form of increased rating claim; therefore, the effective date rules for increased compensation claims apply. The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). A “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). In general, “date of receipt” means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). The Court has held that the relevant temporal focus for adjudicating an increased rating claim is from one year before the claim was filed until VA makes a final decision on the claim. Hart, 21 Vet. App. 505. Therefore, the ultimate question in determining the effective date for a TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Under 38 C.F.R. § 3.157, a report of examination or hospitalization by VA will be accepted as an informal claim for benefits. However, the provisions of 38 C. F. R. § 3.157(b)(1) state that such reports must relate to examination or treatment of a disability for which service connection has previously been established or that the claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b)(1). A TDIU may be assigned when a disabled veteran, in the judgment of the rating agency, is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, multiple injuries incurred in action will be considered as one disability. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. “Substantially gainful employment” is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993). The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, in the June 2015 CUE motion, the moving party contends that the effective date for the award of a TDIU should have been August 25, 1993, the date he last worked and the date he was determined to be disabled for Social Security Administration (SSA) purposes. Specifically, the moving party contends that the Board erred in the January 13, 2015, decision by not considering evidence of unemployability due to service-connected disabilities prior to August 30, 2003. He contends that, had such error not been committed, the January 13, 2015, Board decision manifestly would have granted an effective date of August 25, 1993, for the award of a TDIU. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). Turning to the moving party’s argument in support of the CUE motion, he argues that the Board in the January 13, 2015 decision erred by not considering evidence indicating that he was hospitalized in August 1993 and diagnosed with lower limb extremity weakness related to his service-connected left ankle disability. He also argues that the Board should have considered this evidence of hospitalization and diagnosis in light of the August 2010 VA neurological examination report indicating the functional impact of his lower extremity weakness. This argument however does not meet the standards for a finding of CUE in the January 13, 2015 Board decision. Not only must the moving party show that entitlement to a TDIU arose prior to the April 30, 2003 effective date currently assigned, he must also show that either 1) August 25, 1993 is later than the date of receipt of the claim for a TDIU; or 2) identify a claim for a TDIU that was received within one year from August 25, 1993. See 38 C.F.R. § 3.400(o) (implicitly recognizing that there must be a claim for increase, formal or informal, to be compared with the factual date of worsening, to determine an effective date). Here, the moving appears to argue that his hospitalization in August 1993 for a lower extremity condition should have given rise to a claim for a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation). As stated by the Board in the January 13, 2015 decision, in March 2002, the RO granted service connection for residuals of a right leg injury and residuals of a right ankle injury. Each disability was assigned an initial 10 percent disability rating, effective September 30, 1998. The RO also awarded an increased rating of 20 percent for residuals of a fracture of the left ankle, effective September 30, 1998. Finally, the RO denied entitlement to a disability rating in excess of 10 percent for lumbar disc herniation. The Veteran was notified of this decision and his appellate rights by letter dated March 18, 2002. In a November 2002 rating decision, the RO, awarded an increased rating of 20 percent for residuals of a fracture of the right ankle, effective April 11, 2002. The RO also denied entitlement to a rating in excess of 10 percent for lumbar disc herniation; entitlement to a rating in excess of 20 percent for a left ankle disability; and entitlement to a TDIU. The Veteran was notified of this decision and his appellate rights by letter dated November 25, 2002. In January 2003, the Veteran submitted a notice of disagreement (NOD) with the RO’s “decision on 3/18/02, awarding me the following ratings for my service-connected injuries.” He went on to specifically list the ratings assigned for his right leg, right ankle, left ankle, and lumbar spine. He enclosed private treatment records related to his lumbar spine. There was no mention of the November 2002 rating decision that denied entitlement to a TDIU or of his employability in the written statement. Therefore, the Board in the January 13, 2015 decision correctly found that this statement did not constitute a NOD with the November 2002 denial of a TDIU. On April 17, 2003, the RO issued a statement of the case (SOC) on the four claims for higher disability ratings. At that time, the Veteran was awarded an increased rating of 20 percent rating for his lumbar disc herniation, effective September 30, 1998. The Board in the January 13, 2015 decision correctly found that the Veteran did not perfect an appeal of the March 2002 rating decision and that both the March 2002 and November 2002 rating decisions became final. The Board in the January 13, 2015 decision then found that the next correspondence was received from the Veteran on April 30, 2004, when he requested an increased rating for his low back disorder. This statement was also accepted by the RO as a claim for a TDIU, and, in a September 2010 rating decision, the RO awarded a TDIU, effective April 30, 2004. See Rice, 22, Vet. App. at 453. As such, the Board in the January 13, 2015 decision correctly awarded an effective date of April 30, 2003, for the award of a TDIU, which is one year prior to the date of claim. Thus, the Board in the January 13, 2015 decision did not err in not considering evidence of the Veteran’s August 1993 hospitalization as a claim for a TDIU. As explained above, the March 2002 and November 2002 rating decisions became final prior to April 30, 2003. Thereafter, the earliest communication that clearly sought to claim either a TDIU or an increased rating was the Veteran’s claim for an increased rating for his low back disorder, received by VA on April 30, 2004. Therefore, there is no basis under the law to support an effective date earlier than April 30, 2003, for the award of the TDIU. Notably, there is no written communication from the Veteran between April 17, 2003 (the date of the SOC) and April 30, 2004 (the date of the Veteran’s claim for an increased rating) reflecting an intent to file a claim for a TDIU or an increased rating. Indeed, as noted, any award based on a subsequently filed application for benefits can be made effective no earlier than one year prior to the date of claim for an increased rating, which was April 30, 2003. Therefore, there is no basis to assign an effective date earlier than April 30, 2003, for the award of a TDIU and the Board did not err in not considering evidence of a hospitalization in 1993. To the extent that such hospitalization in 1993 may have given rise to a claim for an increased rating or a TDIU, such claim was adjudicated in the March 2002 and November 2002 rating decisions that became final prior to April 30, 2003. Based on the foregoing, the moving party has failed to show that the January 13, 2015 Board decision contains an error, of fact or of law, that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Hence, the moving party’s CUE motion must be denied. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.Thomas, Associate Counsel