Citation Nr: 18149629 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 09-31 461 DATE: November 14, 2018 ORDER The January 14, 1994 and June 5, 1996 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions denying an increased 100 percent disability for the service connected posttraumatic stress disorder (PTSD) for periods prior to August 27, 1995 (exclusive of periods of temporary total rating from August 2, 1992 to November 2, 1992 and from September 14, 1993 to November 9, 1993) were not clearly and unmistakably erroneous (CUE). FINDING OF FACT The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the January 14, 1994 and June 5, 1996 rating decisions, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it denied an increased 100 percent disability for the service connected PTSD for periods prior to August 27, 1995. CONCLUSIONS OF LAW 1. The January 14, 1994 rating decision denying an increased 100 percent disability rating for the service connected PTSD, for periods prior to August 27, 1995, was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 2. The June 5, 1996 rating decision denying an increased 100 percent disability rating for the service connected PTSD, for periods prior to August 27, 1995, was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1964 to June 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from September 2008 and April 2009 rating decisions by the RO that, in pertinent part, and in effect, denied the Veteran’s claim of CUE in the original (December 1982) RO rating decision assigning a 10 percent disability rating for PTSD; denied CUE in a subsequent (October 1984) RO rating decision confirming the 10 percent rating; and found that the Veteran was not entitled to an effective date prior to August 27, 1995, for the assignment of a total (100) percent rating for PTSD on the basis of CUE (the effective date of the 100 percent rating having been established in a June 1996 RO rating decision). This case was previously before the Board in March 2013. Based on the various statements then of record, from both the Veteran and his representative, the Board characterized the CUE issue in terms of whether the RO committed CUE when, by rating decisions entered in December 1982, September 1984, January 1994, and June 1996, it assigned, and subsequently confirmed, a 10 percent rating for PTSD for all periods prior to August 27, 1995 (exclusive of periods of temporary total rating from August 2, 1992 to November 2, 1992 and from September 14, 1993 to November 9, 1993). The Board determined that the RO’s December 1982 and September 1984 decisions had been subsumed by Board decisions dated in March 1984 and December 1985, respectively, and therefore could not be reversed or revised on the basis of CUE; and dismissed without prejudice to refiling the Veteran’s claims of CUE in the RO’s January 1994 and June 1996 decisions as legally insufficient. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). By a memorandum decision dated in August 2014, the Court vacated and remanded the portion of the Board’s decision that dismissed without prejudice to refiling the Veteran’s request for revision of the January 1994 and June 1996 RO decisions based on CUE. Specifically, the Court held that the Board erred in failing to adequately discuss why it found the Veteran’s request for revision of the January 1994 and June 1996 RO rating decisions to not be properly pled. As the Board finds the CUE claim to be properly pled in the instant decision, and considers whether there was CUE in the January 1994 and June 1996 RO rating decisions on the merits, the Board adequately addresses the Court’s concerns in the instant matter. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). With regard to the remaining matters the Board decided, the Court found that the Veteran had not challenged the Board’s determination that the December 1982 and October 1984 RO rating decisions had been subsumed and could not be revised on the basis of CUE. As such, the Court considered the appeal of those matters to have been abandoned, and dismissed them without a decision on the merits. In a subsequent January 2015 decision, the Board found that the Veteran and representative adequately pled CUE in the instant matter; specifically, they argued that the RO erred, in both the January 14, 1994 and June 5, 1996 rating decisions, by not assigning a 100 percent disability rating for the service connected PTSD for the periods prior to August 27, 1995. The Board then remanded this justiciable CUE claim to the Agency of Original Jurisdiction (AOJ) for initial adjudication, which occurred in November 2016. The Veteran testified from Denver, Colorado, at an August 2012 Travel Board hearing before a Veterans Law Judge (VLJ). The hearing transcript has been associated with the record. The undersigned VLJ is not the VLJ who presided over the August 2012 hearing. As such, in August 2017, the Board remanded the instant matter to schedule the Veteran for a new hearing before the Board, which occurred via videoconference in January 2018. This new hearing transcript has also been associated with the record. CUE in January 14, 1994 and June 5, 1996 PTSD Rating Decisions Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither 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 the 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, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the January 14, 1994 and June 5, 1996, rating decisions became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decisions and no new and material evidence was received during the one year appeal period following those decisions. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Board also finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements as to the question of whether there was CUE in the January 14, 1994 and/or June 5, 1996 RO rating decisions. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). As discussed above, in its January 2015 Remand, the Board found that the Veteran and then-representative adequately pled CUE in the instant matter; specifically, it was argued that the RO erred, in both the January 14, 1994 and June 5, 1996 rating decisions, by not assigning a 100 percent disability rating for the service connected PTSD for the periods prior to August 27, 1995. In support of this contention, at the August 2012 Travel Board hearing, the Veteran testified to having the same PTSD symptoms for many years prior to the grant of a 100 percent disability rating from August 27, 1995. At the January 2018 Board videoconference hearing, the Veteran’s new representative asked that the Board “look at potential 50 percent or 70 percent [disability ratings] for periods prior to August 27, 1995, if it finds that [the Veteran] meets the criteria for 50 percent or 70 percent. Not just limiting it to 100 percent.” The instant matter is a CUE claim, not a claim for an increased disability rating. As discussed above, a CUE claim must be pled with specificity. Here, the Board finds that the Veteran has specifically pled that the RO committed CUE when it failed to assign a 100 percent disability rating for the service connected PTSD prior to August 27, 1995. Supporting this argument, the Veteran argues that the symptoms in existence on August 27, 1995, were present for many years prior to that date. Asking the Board to also consider whether the Veteran should have been assigned 50 or 70 percent disability ratings is not pleading with specificity, as required in a CUE claim. Here, the Veteran has specifically argued that a 100 percent disability rating was warranted because the symptoms in existence on August 27, 1995, were also present for many years prior to that date. No specific argument has been provided as to why it was clear and unmistakable that a 50 percent or 70 percent disability rating should have been assigned prior to August 27, 1995. Further, if it is clear and unmistakable that a 100 percent disability rating should have been assigned for the relevant period prior to August 27, 1995, as the Veteran has specifically pled/argued in the instant matter, it cannot be clear and unmistakable that a 50 percent or 70 percent disability rating should have been assigned for the same relevant period. For these reasons, the Board will not entertain the representative’s request that the Board consider whether the Veteran should have been assigned 50 or 70 percent disability ratings prior to August 27, 1995. At the time of the January 14, 1994 and June 5, 1996 RO rating decisions, a 100 percent disability rating was warranted for symptoms of PTSD when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, or there were totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior, or the veteran was demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.130 (1988). Review of the June 1996 RO rating decision reflects that the Veteran was granted a 100 percent disability rating from August 27, 1995 due to in patient treatment records showing that the Veteran was incapable of working due to the considerable effort the Veteran had to expend to be able to function at a minimal level due to mental health symptomatology. As discussed above, the Veteran argues that such symptoms were present well before August 27, 1995, and that the RO in both January 14, 1994 and June 5, 1996 committed CUE by not assigning a 100 percent disability rating prior to August 27, 1995. The evidence of record at the time of the January 14, 1994 and June 5, 1996 RO rating decisions was as follows. A September 1992 VA treatment record reflects that upon examination the Veteran was neat and clean, speech was relevant and coherent, the Veteran was cooperative, denied hallucinations or delusions, had fair judgment, and was oriented to time, place, and person. The Veteran was depressed and expressed having suicidal ideation without intent. Thought processes were normal and insight was fair. While the VA physician reported that the Veteran was considered to be unemployable at that time, as will be discussed below, the Veteran resumed working upon discharge. A Global Assessment of Functioning (GAF) score of 60 was assigned, which was consistent with moderate difficulty in social, occupational, or school functioning. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). A VA mental health examination was performed in May 1993. Per the examination report, the Veteran was working as a nurse at the time of examination. The Veteran advanced working up to 100 hours per week at that time. Upon examination, the Veteran was coherent, appeared healthy and well groomed, demonstrated appropriate behavior and good judgment, and denied auditory and visual hallucinations, with the exception of flashbacks and nightmares related to service. The Veteran did display paranoia, depression, and flattened affect. At the conclusion of the examination the VA examiner opined that the Veteran had a moderate degree of emotional impairment with a fair prognosis. The Veteran received in patient hospital treatment in November 1993. At that time the Veteran was guarded, suspicious, and had anger issues. However, upon receiving treatment the Veteran was able to express anger in appropriate ways. The Veteran was also having sleep problems, including nightmares related to service. While the Veteran was anxious, thoughts were logical and goal directed, there were no hallucinations, and there was no suicidal or homicidal ideation. Upon undergoing mental health treatment, the Veteran made substantial progress and was discharged. Per the treatment record, the Veteran had a GAF score of 51, which, again, only reflected moderate difficulty in social, occupational, or school functioning. Id. An October 1995 VA treatment record reflects that in August 1995 the Veteran sought treatment for worsening PTSD symptoms that had recently manifested after losing a nursing job he had worked at for the previous two years. As discussed above, to warrant a 100 percent disability rating for PTSD at the time of the January 14, 1994 and June 5, 1996 RO rating decisions, the mental health symptomatology had to be particularly severe and/or demonstrably show an inability to obtain or retain employment. 38 C.F.R. § 4.130 (1988). During the relevant period on appeal prior August 27, 1995, the evidence conveyed that the Veteran was able to work long hours as a nurse, and was able to maintain his last nursing position for two years prior to PTSD symptoms worsening and preventing further employment (which subsequently resulted in the grant of a 100 percent disability rating for the service connected PTSD from August 27, 1995). Further, GAF scores and mental examinations from the relevant time period at issue convey that the Veteran’s overall social and occupational functioning was only moderately impacted by the PTSD symptomatology. Based upon the evidence before the RO at the time of the January 14, 1994 and June 5, 1996 RO rating decisions, it cannot be said that the evidence clearly and unmistakably shows that the Veteran’s mental health symptomatology was so severe as to warrant a 100 percent disability rating prior to August 27, 1995. As such, the Veteran’s argument that the mental health symptoms warranting a 100 percent disability rating existed prior to August 27, 1995, appears to be nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. For the aforementioned reasons, the Board finds there was no CUE in the January 14, 1994 and June 5, 1996 RO rating decisions denying an increased 100 percent disability rating for the service connected PTSD for periods prior to August 27, 1995 (exclusive of periods of temporary total rating from August 2, 1992 to November 2, 1992 and from September 14, 1993 to November 9, 1993). The appeal is accordingly denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel