Citation Nr: 1829915 Decision Date: 10/19/18 Archive Date: 10/30/18 DOCKET NO. 16-41 832 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a May 2013 Board decision that denied an effective date prior to November 18, 1999 for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Moving party represented by: Travis Ann Taylor, agent ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel INTRODUCTION The moving party, the Veteran, originally appealed an April 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted TDIU, effective November 18, 1999. The Veteran appealed the effective date to the Board, which remanded the case to the RO or additional development in February 2002. An April 2004 Board decision in part denied the claim for an earlier effective date for the award of TDIU. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (CAVC), which in a September 2006 Memorandum Decision vacated that part of the Board's decision regarding an earlier effective date for TDIU and remanded the matter to the Board for further action. The Board remanded the matter to the RO for additional development in March 2007. A January 2009 Board decision also denied an earlier effective date for the award of TDIU, and the Veteran again appealed the decision to the CAVC. The CAVC granted an April 2010 Joint Motion for Remand of the parties, thereby vacating the Board's decision and remanding the matter to the Board for compliance with the terms of the Joint Motion. In July 2010 the Board remanded the matter to the RO for additional development. A May 2013 Board decision denied an effective date prior to November 18, 1999 for the award of TDIU. In December 2016, the moving party filed a motion (dated in September 2016) with the Board to revise its May 2013 decision on the basis that it was clearly and unmistakably erroneous. The May 2013 Board decision also granted the Veteran a 100 percent schedular rating for his service-connected posttraumatic stress disorder (PTSD) for "the entire appeal period" (the Board's decision did not establish or specify a precise effective date). In other words, the Board granted the Veteran's claim in full, so the decision was completely favorable to him. A December 2014 CAVC Memorandum Decision acknowledged that the Veteran withdrew his assertions of error in the Board's May 2013 decision granting a 100 percent rating for PTSD. To the extent that the Veteran in December 2016 filed a motion, dated in November 2016, relative to an earlier effective date for the 100 percent rating for PTSD, this disagreement would necessarily be with the subsequent RO action assigning the effective date of the award of 100 percent for PTSD. It is not before the Board for consideration of revision or reversal based on CUE. The Board further notes that the Veteran has asserted "CUE" with regard to the effective dates assigned by the RO in a May 2015 rating decision regarding awards for service connection for residuals of a stroke and for special monthly compensation (SMC) based on the need for a higher level of aid and attendance under 38 U.S.C. § 1114(r)(2); such underlying claims were granted by the Board in a May 2015 decision. The RO has interpreted the "CUE" assertions as the Veteran's notice of disagreement with its May 2015 rating decision, which assigned the effective dates of the awards, and further due process development is pending on those matters. (The Board acknowledges the Veteran's September 2018 statement requesting consideration of a CUE motion in relation to a "June 2015" Board decision; however, the Board's May 2015 decision was completely favorable to the Veteran, and the RO's May 2015 rating decision, with notification to the Veteran by letter in June 2015, assigned the effective dates of the awards that were granted by the Board. The Board will proceed to address only the CUE assertions in its May 2013 decision.) FINDINGS OF FACT 1. A May 2013 Board decision denied the Veteran an effective date prior to November 18, 1999 for the award of a TDIU rating. 2. The record does not establish that any of the correct facts as they were known at the time were not before the Board in May 2013, or that the Board incorrectly applied statutory or regulatory provisions in effect at that time such that the outcome of the claim would have been manifestly different but for the error. CONCLUSION OF LAW The May 2013 Board decision, denying the Veteran's claim seeking an effective date prior to November 18, 1999 for the award of a TDIU, was not clearly and unmistakably erroneous. 38 U.S.C. § 7111; 38 C.F.R. § 20.1403. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of CUE Governing authority that permits challenges to decisions of the Board on the grounds of CUE is found in 38 U.S.C. § 7111 and 38 C.F.R. § 20.1400-11. A final Board decision may be revised or reversed on the grounds of CUE by the Board on its own motion, or upon request of a moving party at any time after the decision is made. 38 U.S.C. §§ 5109A(a), 7111(a) and (c). CUE is defined as 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; 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. 38 C.F.R. § 20.1403(a). A review for CUE in a prior Board decision must be based on the record and the law as it existed when that decision was made. 38 C.F.R. § 20.1403(b). 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. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c). CUE does not include: a change in medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision (see 38 C.F.R. § 20.1304(d)(1); Porter v. Brown, 5 Vet. App. 233, 235-37 (1993)), VA's failure to fulfill the duty to assist (see 38 C.F.R. § 20.1403(d)(2); Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); and a disagreement as to how the facts were weighed or evaluated (see 38 C.F.R. § 20.1403(d)(3); Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994)). CUE also does not include 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); Jordan (Timothy) v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005). Further, the doctrine of the favorable resolution of reasonable doubt is not applicable in determinations of whether a prior Board decision contains CUE. 38 C.F.R. § 20.1411(a). As a threshold matter, a claimant must plead CUE with particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995). In other words, "broad-brush" allegations such as general assertions of a failure to follow the regulations, failure to give due process, failure to accord the benefit of the doubt, or failure to give reasons and bases do not qualify as CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Analysis The Veteran sought an effective date prior to November 18, 1999 for the award of a TDIU. The Board denied his appeal in a May 2013 decision, and in December 2016 the Board received his motion, dated in September 2016, to revise its May 2013 decision on the basis that the decision was clearly and unmistakably erroneous. The assertions set forth in the motion are confusing and difficult to follow. Appended to the motion is a report Dr. Bash, who evidently was consulted on the matter and has furnished somewhat more concise arguments regarding purported errors in the record as well as his own medical opinions. Dr. Bash has also provided statements in earlier reports such as those in January 2015, June 2015, and November 2015. After a careful review of the record, the Board finds that its May 2013 decision that denied an earlier effective date for the TDIU award was not clearly and unmistakably erroneous. Specifically, the record does not establish that any of the correct facts as they were known at the time were not before the Board in May 2013, or that the Board incorrectly applied statutory or regulatory provisions in effect at that time such that the outcome of the claim would have been manifestly different but for the error. The Board previously concluded that VA received a TDIU claim on January 18, 2000, before which there was no pending claim for an increased rating (either formal or informal), and that in the one-year "look back" period from the date of receipt of the claim there were treatment records reflecting low back complaints dated November 18, 1999. The Board found that the Veteran had been totally and permanently disabled since at least November 18, 1999. Given the foregoing, the Board denied an effective date earlier than November 18, 1999 for the award of TDIU. Such conclusions were in accordance with the law at that time. The applicable rules governing the assignment of effective dates for TDIU/increased rating claims provide that, in circumstances where the Veteran is reopening his claim, the effective date is determined in relation to the date of receipt of the reopened claim; however, if it is factually ascertainable that an increase in disability had occurred within the one-year period prior to the filing of the claim, the effective date is the date the increase was shown. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o). If the increase in disability had occurred more than one year prior to the date of claim, an earlier effective date cannot be assigned. Id., see also Gaston v. Shinseki, 605 F.3d 979 (2010). Here, the Veteran's reopened claim was filed on January 18, 2000, but the increase in his low back disability warranting a TDIU (i.e., his service-connected disability prevented him from securing and maintaining substantially gainful employment consistent with his education and experience) was factually ascertainable on November 18, 1999, which was within the one-year period prior to the filing of the claim on January 18, 2000. Accordingly, there was no basis under the law upon which the Board in May 2013 could have awarded an effective date earlier than the November 18, 1999; therefore, the Board's decision does not constitute CUE. Prior to its May 2013 decision, the Board twice (in April 2004 and in January 2009) denied an earlier effective date for the award of TDIU. The Veteran appealed each of those decisions to the CAVC, which vacated the decisions and remanded the matter to the Board. In a September 2006 Order, the CAVC stated that the parties agreed that the Board did not discuss the evidence of record prior to November 1999 regarding the Veteran's back disability including medical reports of 1979 and 1980 indicating that he was totally disabled from the disability; and that the failure to obtain the Veteran's Social Security Administration (SSA) records violated VA's duty to assist. The CAVC also granted an April 2010 Joint Motion of the parties, which agreed that the Board provided inadequate reasons or bases for denying an earlier effective date because it did not consider and apply 38 C.F.R. § 3.157 (relative to acceptance of VA examination or hospital reports as informal claims for increased ratings) in determining if the Veteran had any earlier pending claims. In the May 2013 decision, the Board discussed the finality of the 1980s RO decisions which had previously considered the medical evidence dating back to the Veteran's original TDIU claim (the rating decisions did not cite to all evidence of record at that time; this omission is further discussed below). As noted above, this was in accordance with the law at the time. The Board also explained that the Veteran's SSA records, as well as the other records reflecting the Veteran was deemed unemployable due to his service-connected disabilities as early as 1979, cannot provide a basis for an effective date earlier than November 1999. Such evidence showed an increase in disability occurred prior to the one-year "look back" period before the receipt of the January 2000 TDIU claim, which is also in accordance with the law cited above. As to the additional VA records secured for the claims file to determine the existence of any earlier pending claims, the Board found that they were not "consistent with an informal claim for increased benefits under 38 C.F.R. § 3.157(b)" as they merely showed ongoing treatment for the service-connected back disability. This finding is a correct application of the regulation extant at the time. In conjunction with the creation of such records, there was no communication from or action by the Veteran indicating an intent to apply for an increased rating including TDIU. See 38 C.F.R. §§ 3.1(p), 3.155(a), pertaining to the definition of a claim for VA benefits. Hence, the Board's conclusion in May 2013 that there was no pending claim for TDIU between the finally adjudicated TDIU claim in January 1986 and the RO's receipt of the January 2000 claim for increase was a correct application of the law and regulations. To the extent that the Veteran argues that there was CUE in the May 2013 decision because there was a pending claim in 1979 and there were contemporaneous medical records supporting a TDIU claim, his assertions must fail. As noted above, the Veteran reopened his claim for a TDIU in January 2000, as his TDIU claim were previously denied by the RO on several occasions, namely, in October 1980, March 1981, June 1983, and January 1986 rating decisions. As he did not appeal those decisions, they became final and his reopened claim after final adjudication then became the operative date for establishing the effective date of the TDIU award. 38 U.S.C. § 5110(a), (b). In other words, he would be unable to obtain an effective date prior to the last final rating decision in the matter (in January 1986), unless he files (and prevails on) a claim to revise that decision based on CUE. In the May 2013 decision, the Board acknowledged that the Veteran had raised CUE in the prior rating decisions, and noted that such claim was previously denied. The RO denied his CUE claim in a July 2002 rating decision, which he did not appeal to the Board. Additionally, in a September 2006 Order, the CAVC found that allegations of CUE in a 1980 RO decision (asserting that a medical opinion by Dr. Reece indicating that the Veteran was unable to work was not considered and that VA erred by failing to notify him how to protect his claims) did not amount to CUE. Furthermore, a December 2014 CAVC Memorandum Decision, affirmed the Board's May 2013 decision denying an earlier effective date based on particular assertions of CUE in rating decisions of the 1980s that the Board had addressed in its decision. The CAVC stated it lacked jurisdiction over some matters pertaining to CUE assertions in the 1980 RO decision because the Board had not decided them (and the Veteran failed to demonstrate that he raised them to the Board or that the Board erred by not addressing them in its 2013 decision). The CAVC also held that the Veteran failed to demonstrate that the Board had erred in dismissing his assertions of CUE in the 1983, 1985, and 1986 RO decisions because they lacked the required specificity. To the extent that certain allegations of CUE in prior RO decisions have been addressed by the Board and subsequently affirmed by the CAVC, the Board's decision on those is not subject to revision on grounds of CUE because it was decided by a court of competent jurisdiction. 38 U.S.C. § 7111; 38 C.F.R. § 20.1400. See also Link v. West, 12 Vet. App. 39, 44 (1998) (the doctrine of res judicata prevents a claimant from raising the same CUE arguments more than once). It is also found that the correct facts as known at the time were before the Board in May 2013. In his motion for revision of the Board decision, dated in September 2016 and received in December 2016, the Veteran argued, at times in repetitive fashion, that evidence in the claims file, to include letters of Dr. Reece stating that the Veteran was 100 percent disabled, was filed in connection with a December 1979 claim for TDIU, and that such evidence reflected "the earliest date on which it was factually accertainable [sic]" that the Veteran's service-connected disability had increased. This argument, in addition to the many others advanced by the Veteran and by Dr. Bash (who examined the Veteran in January 2015 and reviewed the claims file) in support of the CUE claim, essentially repeats allegations previously raised about how the RO in its decisions in the 1980s should have then granted TDIU based on then existing medical evidence. Such allegations were raised in the context of CUE assertions in those rating decisions, and not only were the Veteran's claims of CUE in the RO decisions denied previously by the RO and the Board (with affirmance by the CAVC in some matters) but they also are best characterized as disagreements with how the facts were weighed by the RO, which does not qualify as CUE. In particular, the Veteran has argued that medical evidence in 1979 showed that his low back disability had worsened, and that there was sufficient evidence in the file at the time of a January 1980 rating decision (which had only considered the claim of a higher rating for the low back disability and not a claim of TDIU) to grant TDIU. This argument goes toward the weighing of evidence, which cannot form a basis for CUE, and all evidence in the file (whether or not it was cited to or explicitly identified) was subsequently considered when the RO adjudicated the TDIU claim soon thereafter in October 1980. The Veteran also leveled allegations that the VA failed in its duty to assist by not obtaining certain records, or that the RO did not have all the pertinent records before it when it denied his TDIU claim in the rating decision in the 1980s. However, as noted by the CAVC in its December 2014 Memorandum Decision, failure to secure records cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002). The Veteran has also asserted that the RO did not have the pertinent records before it when it denied his TDIU claims in the rating decisions in the 1980s, as evidenced by the RO failing to cite or reference them in the rating decisions. As to such assertions, the Board notes that RO decisions issued before February 1, 1990 were not required to identify the evidence considered or the reasons for the RO decision because 38 U.S.C. § 5104(b) [specifying that notice of VA decisions must include a statement of the reasons for the decision as well as a summary of the evidence considered] had not been promulgated in its current form. See also King v. Shinseki, 26 Vet. App. 433, 438 (2014) (finding that "failure to mention evidence in a decision prior to February 1990 does not mean that the evidence was not considered"). Additionally, allegations that the Board did not consider as an informal claim for TDIU the evidence he presented in 1979 regarding his service-connected low back disability, or consider the RO's "failure" to adjudicate his TDIU claim in rating decisions of January 1980 and May 1980 (which only considered his low back rating), cannot form the basis for CUE because a failure to provide an adequate statement of reasons or bases does not constitute CUE. See Fugo v. Brown, 6 Vet. App. 40, 45 (1993). In short, the Veteran's statements regarding record-related failures or omissions by the RO or Board do not constitute CUE. In support of his motion, the Veteran has referred to assertions of CUE discussed by Dr. Bash (a neuro-radiologist who examined the Veteran in January 2015 and provided additional arguments and evidence). As stated in a November 2016 report, Dr. Bash asserted that going back to 1980, the Veteran's "clinical exams do not match his VA ratings." Based on a review of the medical records, he felt the Veteran should have been awarded a TDIU since 1980. In November 2015, he provided reasons for his opinion, with citation to specific clinical findings in the record, and explained that a VA examiner's opinion in February 1980 was "an outlier" and that the majority of physicians at the time felt the status of the Veteran's back condition was not compatible with work. As noted above, this medical analysis is essentially a weighing of the evidence, which is not a basis for CUE. In January 2015 and June 2015 reports, Dr. Bash reviewed medical reports from the early to mid-1980s that he felt justified TDIU, and urged the VA to "apply the equipoise rule and grant the claim." However, the doctrine of the favorable resolution of reasonable doubt is not applicable in determining whether a prior Board decision contains CUE. 38 C.F.R. § 20.1411(a). CUE is the type of error that, when later reviewed, compels the conclusion that the result would have been manifestly different but for the error; doubt does not come into play and reasonable minds do not differ in the finding of error. To the extent that Dr. Bash is furnishing his own considered medical opinion as evidence to support the CUE motion, t only the evidence that was in the claims file at the time of the May 2013 Board decision may be considered in the Veteran's CUE motion. See 38 C.F.R. § 20.1403(b)(1). Therefore, the medical opinions that Dr. Bush has provided in various reports such as those dated in January 2015, June 2015, November 2015, and May 2016, may not be used as evidence in support of the Veteran's CUE motion. In short, the Veteran has not shown how the Board's May 2013 conclusion, denying an effective date prior to November 18, 1999 for the award of a TDIU, is CUE. The Board reiterates that the standard for CUE requires that any such error compel the conclusion that reasonable minds could not differ, and that the result would have been manifestly different but for the error. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Here, the Veteran has not shown an undebatable error in the May 2013 Board decision, adjudicating the issue of the effective date for the award of a TDIU, which would manifestly change the outcome of the decision. Any disagreement with how the Board weighed and evaluated the facts on record in this regard does not constitute CUE. The May 2013 Board decision was reasonably supported by the evidence of record, and was consistent with the laws and regulations then in effect in addition to the case law and the statutory and regulatory provisions pertaining to CUE. Consequently, the motion for revision of that decision must be denied. ORDER As the Board's May 2013 decision, which denied the Veteran's claim seeking an effective date prior to November 18, 1999 for the award of a TDIU, was not clearly and unmistakably erroneous, the motion for revision or reversal of that decision is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs