Citation Nr: 18158896 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-09 062 DATE: December 18, 2018 ORDER An earlier effective date than July 20, 1999, for the award of a total rating based on individual employability due to service-connected disabilities (TDIU) due to clear and unmistakable error (CUE) in the February 2000 rating decision is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Navy from April 1984 to November 1995; for his meritorious service, the Veteran was awarded (among other decorations) the Combat Action Ribbon. 2. The evidence does not establish, without debate, that the correct facts as then known were not before the Regional Office (RO) at the time of the February 2000 rating decision, or that the RO incorrectly applied the applicable laws and regulations existing at the time. CONCLUSION OF LAW The criteria for an effective date prior to July 20, 1999, for the award of a TDIU due to CUE in the February 2000 rating decision have not been met. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.105, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is currently seeking an effective date prior to July 20, 1999, for the award of a TDIU on the basis of a CUE in the February 2000 rating decision. 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) “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 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). The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet. App. 449, 451-52 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999). The general rule with respect to effective date of an award of increased compensation is that the effective date of award “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32 ; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC 12-98. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry “is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Factors to be considered are the veteran’s education, employment history and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Here, the Veteran was awarded a TDIU, effective July 20, 1999, in a February 2000 rating decision. This effective date corresponds with the date that VA received the Veteran’s claim. He now contends that an effective date of November 24, 1995, is warranted for the award of a TDIU, and that the February 2000 rating decision assigning an effective date of July 20, 1999, was clearly and unmistakably erroneous. In doing so, he theorizes that November 24, 1995, is the appropriate effective date because this corresponds with the date of an increased 40 percent rating for his service-connected back disability. As such, this appeal is not predicated upon a valid CUE claim. At no time has the Veteran asserted, or does the evidence otherwise suggest, that the February 2000 rating decision was undebatably based upon incorrect facts or regulations. Instead, the Veteran’s appeal is based upon a misunderstanding of, or disagreement with, the regulations pertaining to the assignment of an effective date for a TDIU at the time the award was made. Indeed, neither the Veteran nor his representative point to evidence that the Veteran sought a TDIU prior to the date of his formal claim (which is, again, the date for which the Veteran’s TDIU has been established), nor have they provided specific argument as to what (if any) medical records, statements, or evidence shows that a TDIU claim should have been considered prior to this date. In sum, the Veteran has not established that the correct facts, as known at the time, were not before the RO in February 2000, and has not shown that any incorrect application of law was outcome determinative (i.e., the outcome would have been manifestly different). Thus, the Board finds there was no CUE in the February 2000 rating decision assigning an effective date of July 20, 1999, for a TDIU. The appeal is thus denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). EVAN DEICHERT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel