Citation Nr: 18151749 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-06 558 DATE: November 20, 2018 ORDER The March 24, 1989 Department of Veterans Affairs (VA) Regional Office (RO) rating decision continuing the initial 10 percent disability rating assigned for service connected encephalopathy due to closed head injury in an April 19, 1988 RO rating decision was not clearly and unmistakably erroneous (CUE). The March 24, 1989 RO rating decision implicitly denying entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) was not clearly and unmistakably erroneous. FINDINGS OF FACT 1. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the March 24, 1989 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it continued the initial 10 percent disability rating assigned for service connected encephalopathy due to closed head injury in an April 19, 1988 RO rating decision. 2. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the March 24, 1989 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it implicitly denied a TDIU. CONCLUSIONS OF LAW 1. The March 24, 1989 rating decision continuing the initial 10 percent disability rating assigned for service connected encephalopathy due to closed head injury in an April 19, 1988 RO rating decision was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 2. The March 24, 1989 rating decision implicitly denying a TDIU was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1984 to January 1988. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the RO in Chicago, Illinois. The Board notes that there has been some confusion as to the actual CUE issues on appeal. Having reviewed the arguments and the evidence of record, the Board finds that the questions on appeal concern whether there was CUE in the March 24, 1989 rating decision continuing the initial 10 percent disability rating assigned for service connected encephalopathy due to closed head injury in an April 19, 1988 RO rating decision, and whether there was CUE in that same decision due to the RO’s failure to grant a TDIU. The Board notes that the March 24, 1989 rating decision is at issue because new and material evidence was received after the issuance of the April 19, 1988 RO rating decision granting service connection for encephalopathy due to closed head injury and assigning an initial 10 percent disability rating, rending the original decision non final. See 38 C.F.R. §§ 3.156(b) (2017). The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issues on appeal. 1. CUE in Initial Encephalopathy Rating 2. CUE in Implicit Denial of TDIU 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 United States Court of Appeals for Veterans Claims (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 March 24, 1989 rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Next, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. 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 explained in a February 2017 brief, and elsewhere throughout the record, the Veteran and representative argue that in the March 24, 1989 rating decision the RO should have considered whether to grant a separate compensable rating for the Veteran’s mental health symptoms. Had the RO done so, a higher initial disability rating would have been awarded, which, in turn, would have led to the RO granting a TDIU based upon the evidence then of record. The Veteran and representative acknowledge that at the time of the March 24, 1989 rating decision, a 10 percent disability rating was the maximum schedular rating for encephalopathy. As such, the Veteran and RO do not argue that there was CUE in the initial disability rating assigned for the service connected encephalopathy due to closed head injury, but argue merely that a separate compensable rating should also have been assigned for the mental health symptoms. Service treatment records reflect that the Veteran received a medical evaluation board examination in July 1987. Per the examination report, during service the Veteran sustained a closed head injury. Upon examination symptoms included slowed response, hyperactivity, and agitation interspersed with lethargy. At the conclusion of the examination the Veteran was diagnosed with encephalopathy secondary to a closed head injury. There was not a separately diagnosed mental health disorder. In other words, all of the mental health symptoms (such as the agitation) were found to be related to the encephalopathy, and not to a separately diagnosable mental health disorder. The Veteran received a VA examination in March 1988. It was noted that the Veteran was unemployed at that time; however, the Veteran had only been out of service for approximately two months at the time of examination. Upon examination it was reported that the Veteran had memory problems, retention and recall problems, and depression with some suicidal ideation but no plan. At the conclusion of the examination, the diagnosis was encephalopathy, focal seizures, and slight facial weakness. The Veteran was not diagnosed with depression or any other mental health disorder. As such, it appears that the VA examiner assessed that the Veteran’s depression symptoms were due to the service connected encephalopathy, rather than a separately diagnosable mental health disorder. A new VA examination was performed in January 1989. Per the examination report, the Veteran had been working as a carpenter at that time, had not taken any time off work due to service connected disabilities, and planned to continue working as a carpenter into the future. Upon examination the Veteran was noted to have memory difficulties, irritability, and anger issues with mood swings. Again, at the conclusion of the examination the Veteran was diagnosed with encephalopathy and facial weakness, with no separate diagnosis of a mental health disorder. The Board notes that the April 19, 1988 RO rating decision, which was subsumed by the later March 24, 1989 rating decision, specifically noted the Veteran’s reported depression and the fact he had not obtained employment since service separation. Further, the March 24, 1989 RO rating decision specifically considered whether a change in the initial disability rating was warranted and, based upon the evidence of record, found there was an insufficient evidentiary basis for such a change. At the time of the March 24, 1989 rating decision, which subsumed the prior April 19, 1988 rating decision, the Veteran was assigned the maximum schedular rating for the service connected encephalopathy due to closed head injury (10 percent). Two VA examiners effectively opined that all the Veteran’s mental health symptoms (including depression) were due to the service connected encephalopathy, and the Veteran did not have a separately diagnosable mental health disorder. The report from the January 1989 VA examination shows that the Veteran was employed as a carpenter at that time and was having no significant difficulty performing the job despite the service connected encephalopathy. Based upon the above, the Veteran and representative’s argument that the Veteran should have been granted a separately compensable disability rating for the mental health symptoms and, in turn, been granted a TDIU, appears to simply 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 March 24, 1989 RO rating decision continuing the initial 10 percent disability rating assigned for service connected encephalopathy due to closed head injury and implicitly denying a TDIU, and the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel