Citation Nr: 18134167 Decision Date: 09/13/18 Archive Date: 09/12/18 DOCKET NO. 15-25 893 DATE: September 13, 2018 ORDER Clear and unmistakable error (CUE) was not shown in a rating decision dated January 10, 2006, which assigned a 30 percent initial rating for posttraumatic stress disorder (PTSD). REMANDED Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to higher initial rating for traumatic brain injury (TBI), rated as 10 disabling, is remanded. FINDING OF FACT The January 2006 rating decision which assigned a 30 percent initial rating for PTSD was supported by the evidence existing at that time, it was consistent with the law and regulations then in effect, and it has not been demonstrated that the outcome would have been manifestly different but for any demonstrated error. CONCLUSION OF LAW There is no CUE in the January 2006 rating decision which assigned a 30 percent initial evaluation for PTSD. 38 U.S.C. §§ 5109(a), 7105; 38 C.F.R. §§ 3.104(b), 3.105(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from August 1998 to September 2004. He was awarded the Combat Infantryman Badge. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2013 (TBI and CUE) and October 2015 (right and left lower extremity radiculopathy) rating decisions of the Department of Veterans Affairs. During the pendency of the appeal, a December 2013 rating decision reduced the initial rating assigned for TBI from 40 percent to 10 percent, effective July 25, 2012, the date of award of service connection. The Veteran testified during a videoconference hearing in June 2017. The transcript is in the record. The Board notes the Veteran’s contention that the initial rating change from 40 percent to 10 percent for his service connected TBI was CUE. See Correspondence (July 14, 2015). However, a CUE claim “cannot lie as to a decision that is still open to direct review.” May v. Nicholson, 19 Vet. App. 310, 317 (2005). A collateral attack or CUE motion made prior to a determination becoming final bypasses the avenue of direct appeal and results in the veteran being “handicapped by the heightened burdens of proof and pleading that are characteristic of a collateral CUE attack.” Id. Therefore, a CUE claim cannot be filed as to a matter that is still appealable or pending. Id. at 320. In this case, the initial rating assigned for the TBI is still pending review and not final. Accordingly, it is not subject to a CUE claim and will not be addressed herein. On July 5, 2016, the Veteran moved to advance his appeal on the Board’s docket due to financial hardship. There is sufficient evidence of financial hardship in the record. Therefore, the Board grants advancement on the docket (AOD) pursuant to 38 C.F.R. § 20.900(c). 1. Clear and unmistakable error was not shown in the January 2006 rating decision which assigned a 30 percent rating for PTSD. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. §§ 3.104, 3.105(a). A claim of CUE is a collateral attack on a final decision by the agency of original jurisdiction (AOJ). Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). A three-pronged test is used to determine whether CUE was 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 of error that, 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. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). CUE is a very specific and rare kind of error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). CUE 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. Id. In order to raise a valid claim of CUE, the Veteran must specifically indicate what the error is and that unless it is the type of error that, if true, would be CUE on its face, the Veteran must provide persuasive reasons why the decision would have been manifestly different but for the error. Id. at 44. There is a presumption of validity to otherwise final decisions, and that when such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Id. Allegations that previous adjudications have weighed and evaluated the evidence improperly can never rise to the stringent definition of CUE. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Similarly, broad brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of error cannot constitute a valid claim of clear and unmistakable error. Fugo, 6 Vet. App. at 44. A breach of the duty to assist cannot form a basis for a claim of CUE. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Cook v. Principi, 258 F. 3d 1311 (Fed. Cir. 2001). Where there is evidence both for and against an issue, it is impossible for a Veteran to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet. App. 84, 88 (2000). The Veteran’s allegations of CUE in the January 2006 rating decision are without merit. The Veteran did not identify any facts known but not before the AOJ at the time of the January 2006 rating decision. To the contrary, he repeatedly refers to facts noted in the April 2005 VA examination (VAX) report and before the AOJ to argue that he should have received a 50 percent rating. E.g., Correspondence (Oct. 9, 2013) (“In the initial rating of PTSD the symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, unprovoked anger with periods of violence and a GAF of 52. These symptoms would give me a rating of 50 percent”). His contention that the AOJ did not consider these symptoms is simply incorrect as such are refuted by the then record. See Correspondence (Dec. 16, 2013). The January 2006 rating decision thoroughly addressed the relevant information from the April 2005 VAX: “You reported being depressed since your return from Iraq. You report difficulty with your temper and that you were referred to psychiatric treatment and anger management during service because of your anger. You report sleep difficulties, hypervigilance, perimeter checking and public confrontations. The VA examiner reported that your mood was anxious, your affect was restricted, your insight was impaired and your judgment was fair. The examiner diagnosed [PTSD] and assigned a Global Assessment Functioning Score of 52, indicating moderate symptoms or moderate difficulty in social, occupational or school functioning. The examiner noted that your psychiatric symptoms have been consistently present since your return from Iraq and that your [PTSD] symptoms have interfered to a certain degree with your ability to work and functional socially.” Likewise, his contention that the AOJ did not consider his in-service treatment is incorrect, as shown above. See Notice of Disagreement (Feb. 3, 2014). He also argues that the examination was inadequate. See Correspondence (Oct. 9, 2013) (“The VA examiner did not indicate what the stressors were to include how they were affecting me”). However, claims based on an alleged breach of the duty to assist can never rise to CUE. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Cook v. Principi, 258 F. 3d 1311 (Fed. Cir. 2001). The rest of the Veteran’s CUE arguments amount to disagreement with how the AOJ weighed and evaluated the evidence. See, e.g., Correspondence (July 14, 2015) (citing various regulations and stating that “all the evidence was not weighed and/or evaluated accurately”). Allegations that previous adjudications have weighed and evaluated the evidence improperly can never rise to the stringent definition of CUE. See Damrel, 6 Vet. App. at 246. In view of the foregoing, the Board finds no CUE in the January 2006 assignment of a 30 percent initial rating for the Veteran’s PTSD. The evidence at the time supported the 30 percent rating or, at a minimum, was such that reasonable minds could disagree on the issue of whether the Veteran’s condition met the criteria for 50 percent rating. Thus, there has not been demonstration of error in the evidence considered or law applied that would manifestly change the outcome. As a result, the Board finds that the January 2006 rating decision which assigned a 30 percent rating for the Veteran’s PTSD did not contain CUE. 38 C.F.R. § 3.105(a). The benefit-of-the-doubt doctrine is inapplicable to CUE motions. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in addressing a clear and unmistakable error motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). Therefore, the CUE claim is denied. REASONS FOR REMAND 1. The issues of entitlement to service connection for left and right lower extremity radiculopathy is remanded. These issues are remanded for a VA examination. The Veteran’s service treatment records contain a permanent physical profile for multiple conditions, including lumbar radiculopathy. The Veteran contends that he still has symptoms of radiculopathy in both legs, although VA medical records do not show any treatment for the same. Two separate VA examinations have unsuccessfully shown radiculopathy and a March 2017 MRI did not demonstrate inflammation, compression, or injury to the spinal nerve root in the lumbar spine, which is said to cause lumbar radiculopathy. See VAX Report (Mar. 21, 2017). However, an electromyogram (EMG) test was never conducted to help substantiate the Veteran’s claim. An EMG test is used to clarify the cause of radiculopathy and/or neuropathy type symptoms and may confirm the existence of any nerve damage in the lower extremities not captured by the lumbar MRI. Therefore, an EMG test of the lower extremities should be obtained. 2. Entitlement to a higher initial rating for TBI, rated as 10 percent disabling, is remanded. The Veteran’s service-connected TBI is rated under Diagnostic Code 8045, which states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. 38 C.F.R. § 4.124a. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment should be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the same table, with the exception of any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms. Id. This issue must be remanded for a medical examination and/or opinion to determine whether the Veteran suffers from cognitive impairment/difficulties and whether any such difficulties are due to his PTSD, TBI, or both. The Veteran underwent a PTSD examination in March 2013. The examination report did not show evidence of cognitive impairment. The Veteran subsequently underwent a TBI examination in April 2013. During the examination, the Veteran reported difficulties with concentration, memory, and organization upon entering school after returning from Iraq. He said he couldn’t manage written schedules. He also said he was sent to a speech therapist and missed multiple appointments due to poor memory and organization. He reported making frequent absent-minded slips and forgetting what he was trying to accomplish. He tackled a psychology major while in school and did well in half the classes and poorly in the others. He received accommodations for learning difficulties while enrolled. He tried working while in school, but was fired from many jobs due to difficulty getting to work on time. After graduating, he worked on and off for many years and reported lapses of attention and being easily distracted. He was fired from one job for assaulting a security officer. The TBI examination noted that the Veteran occasionally spoke and acted inappropriately in social situations, that he had poor impulse control, behavior disinhibition, anger, and irritability, that he masturbated in inappropriate situations. Given the above, the TBI examiner stated there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment, resulting in a Level 2 evaluation; however, the examiner also noted that some of the same symptoms were subjective symptoms, including poor impulse control, behavioral disinhibition, anger, and irritability, that were assessed as Level 1. In October 2013, the Veteran submitted a PTSD Disability Benefits Questionnaire dated August 2013 which was completed by his private psychologist or psychiatrist. The examiner noted symptoms of cognitive impairment such as mild memory loss, impairment of short-term and long-term memory, impaired judgment, impaired impulse control, and obsessional rituals which interfere with routine activities. The report contained several generic statements that some symptoms associated with PTSD (such as “emotional dysreg” and “diff[iculty] concentrating” can also be attributable to his TBI. However, medical opinions expressed in terms of “may,” or “could be” are too speculative to be of probative value. See, e.g., Warren v. Brown, 6 Vet. App. 4, 6 (1993) (finding physician’s statement that the Veteran’s psychiatric disorder “could have been” caused by active service was too speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (stating that a medical opinion expressed in terms of “may” also implies “may not,” and is too speculative). Lastly, in December 2013, the VA examiner who conducted the March 2013 PTSD examination attempted to attribute various symptoms either to the Veteran’s PTSD or TBI. The examiner reported that the Veteran’s claims folder, including VA examinations and the private DBQ were reviewed. The examiner stated that the symptoms listed in that report were all reasonable symptoms related to PTSD and “are as likely as not attributable to only PTSD.” The examiner also remarked that there is no objective evidence of cognitive impairment in the PTSD examinations, which is contrary to the private DBQ submitted by the Veteran. Presently, the Veteran’s cognitive symptoms have been attributed to his PTSD, but the medical evidence is unclear in this respect and a higher rating may come from more clarity. Indeed, the regulations provide that there may be an overlap of manifestations of conditions evaluated under the TBI Table with manifestations of a comorbid mental or neurologic disorder or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, no more than one evaluation is to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, a separate evaluation is assigned for each condition. 38 C.F.R. § 4.124 (a), Note 1. Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. 38 C.F.R. § 4.124 (a), Note 2. For these reasons, a VA examination and medical opinion should be obtained to determine the nature and extent of any cognitive impairments, and to determine whether they are attributable to the Veteran’s PTSD, TBI, or both. The matters are REMANDED for the following action: 1. Schedule the Veteran for an EMG examination by an appropriate clinician to determine the presence and nature of any lower extremity radiculopathy, bilateral or otherwise. If radiculopathy of either lower extremity is demonstrated by an EMG, the examiner must opine whether it is at least as likely as not (1) proximately due to service-connected low back disability, or (2) aggravated beyond its natural progression by service-connected low back disability. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In particular, the examiner must conduct diagnostic testing to determine the nature, severity, frequency, and duration of any cognitive impairments. To the extent possible, the examiner must determine whether any cognitive impairments are manifestations solely of TBI, or whether they are manifestations of both conditions. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel