Citation Nr: 19177805 Decision Date: 10/09/19 Archive Date: 10/09/19 DOCKET NO. 19-03 008 DATE: October 9, 2019 ORDER The motion to revise based on clear and unmistakable error (CUE) a May 2018 Board decision that denied an increased rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to October 13, 2017, and thereafter, in excess of 70 percent is dismissed without prejudice to refiling. FINDINGS OF FACT 1. In May 2018, the Board denied a claim for an increased rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to October 13, 2017, and thereafter, in excess of 70 percent. The Veteran did not appeal the decision to the U.S. Court of Appeals for Veterans Claims (Court). 2. The moving party has not advanced specific claim of CUE in the May 2018 Board decision that denied increased rating for PTSD disability. CONCLUSION OF LAW The May 2018 Board decision is final, and the criteria to reverse or revise the decision based on CUE is dismissed without prejudice to refiling. 38 U.S.C. § 7111, 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. REASONS AND BASES FOR FINDINGS AND CONCLUSION The moving party is a Veteran who had active service in the United States Army from February 1984 to February 1990. This matter comes before the Board as original action on the motion of the moving party to revise, on the basis of CUE, in a May 2018 Board decision. The undersigned Veterans Law Judge (VLJ) did not participate in the previous Board decision. See 38 C.F.R. § 20.1405 (a) In December 2018, the Veteran filed a timely notice of disagreement as to April 11, 2018 notification letter, in which the RO advised the Veteran as to the assigned effective date of October 13, 2017 for the award of a total disability rating due to individual unemployability (TDIU). The Veteran specifically marked his disagreement with assigned effective date for award of TDIU. The issue of entitlement to an effective date prior to October 13, 2017 for award of TDIU is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. Motion to revise based on clear and unmistakable error (CUE) the May 2018 Board decision The Veteran asserts there was CUE in the May 2018 Board decision. In the May 2018 decision, the Board denied a rating in excess of 50 percent prior to October 13, 2017, and thereafter, a rating in excess of 70 percent for PTSD disability. The moving party was provided with a copy of the decision. The moving party did not appeal the adverse decision to the United States Court of Appeals for Veterans Claims and it is therefore final. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103. The appeal arises from a June 2008 rating decision that denied an increased rating for PTSD and entitlement to TDIU. The Veteran appealed the denial of his claims. The Veteran presented testimony during a February 2014 Board hearing (before the VLJ who signed the May 2018 decision) on the issues of increased rating for PTSD and entitlement to TDIU. In January 2015, the Board remanded the Veteran’s claims for additional development, to include affording the Veteran with a new VA psychiatric examination. In February 2016, the Board remanded the claims again to afford the Veteran with a new VA psychiatric examination and to obtain VA medical opinion on impact of his service-connected disabilities on his employability. In a November 2017 rating decision, the RO increased the assigned rating to 70 percent for PTSD, effective from October 13, 2017 and awarded entitlement to TDIU, also effective from October 13, 2017. In that rating decision, the Veteran was advised the increased rating for PTSD disability demonstrated a partial grant and the issue was still considered on appeal; however, the rating decision stated that the award of TDIU, effective from October 13, 2017, demonstrated a complete grant of this issue and it would be removed from appeal. The Veteran’s claim for increased rating for PTSD was addressed in a November 2017 supplemental statement of the case (SSOC). Subsequently, in a March 2018 rating decision, the RO continued the denial of a rating in excess of 70 percent since October 13, 2017 for PTSD disability, and again, noted an award of entitlement to TDIU, effective from October 13, 2017, and that this award demonstrated complete grant of TDIU issue. The Veteran received notification of both the November 2017 and March 2018 rating decisions in April 2018. See April 11, 2018 VA Notification Letter. In the May 2018 Board decision denied increased rating for PTSD in excess of 50 percent prior to October 13, 2017, and thereafter, in excess of 70 percent. By implication, the Board declined jurisdiction over the issue of entitlement to a total disability rating due to individual unemployability (TDIU) prior October 13, 2017. The Veteran asserts CUE in the May 2018 decision. As set forth in his December 2018 CUE motion, the Veteran argues CUE because the Board failed to consider the issue of entitlement to TDIU prior to October 2017. The Veteran asserts that his claim for entitlement to TDIU has been pending since October 2006, and the RO’s award only demonstrated a partial grant of the full benefit sought. The Veteran contends that the issue of entitlement to TDIU prior to October 13, 2017 should have been addressed in the May 2018 decision, and the Board’s failure to do so was CUE. In addition, the Veteran argues CUE because the Board failed to ensure compliance of the February 2016 Board remand directions by obtaining VA medical opinion on impact of the Veteran’s service-connected disabilities (PTSD and tinea pedis) on his employability. Finally, the Veteran asserts CUE because the Board failed to request a remand for development of issue of increased rating for tenia pedis in conjunction with the TDIU claim. As noted above, the record also contains a December 2018 notice of disagreement, in which the Veteran identified the April 11, 2018 notification letter as the decision he wished to appeal and included his disagreement with the assigned effective date for the award of TDIU. The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404 (b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). Under 38 C.F.R. § 20.1409 (c), the Board’s regulations specify that a moving party has only one opportunity to challenge a Board decision based on CUE. A claimant is allowed only one request for revision based on CUE for each Board decision, even if a claimant’s second request for revision based on CUE attempts to raise a different theory of CUE. There is a difference between a Board decision and RO decisions with respect to CUE claims. The regulations governing CUE challenges to finality of RO decisions do not limit the number of times a claimant may raise a CUE claim as to a specific RO decision. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105; Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). In contrast, the regulation limits each claimant to one challenge to the finality of each Board decision. Hillyard v. Shinseki, 695 F.3d 1257, 1258 (2012). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. 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. 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. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 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 when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. Examples of situations that are not CUE include: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403 (d). CUE also does not encompass 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). After reviewing the moving party’s December 2018 statement alleging CUE, the Board finds that his statements are focused on his desire for an award of TDIU prior to October 13, 2017, and do not specify how the Board’s May 2018 erred in denying increased rating in excess of 50 percent prior to October 13, 2017, and thereafter in excess of 70 percent for PTSD disability. He asserted only that the Board should have considered the issue TDIU prior to October 2017 and the Board further erred in not ensuring compliance of remand directives that pertained to development of the TDIU claim. To the extent that the moving party asserts CUE because the Board’s May 2018 decision erred in declining to take jurisdiction over the issue of TDIU prior to October 13, 2017, the correct application of VA statutes and regulations at the time of the May 2018 decision allowed for such Board discretion over appellate jurisdiction. The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. See 38 U.S.C. § 7104; 38 C.F.R. § 19.4. The March 2018 rating decision had stated that the award TDIU was a complete grant of the benefit sought and the issue was removed from appeal. In the May 2018 decision, the Board implicitly determined that the TDIU claim had been fully adjudicated by the RO and the Board no longer had jurisdiction over the claim. The Board acknowledges the Court’s decision in Harper v. Wilkie, 30 Vet. App. 356 (2018) holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). However, Harper case was not decided until December 2018, which comes after the May 2018 Board decision, and a later change in the interpretation of statutes and regulations cannot serve as CUE. See 38 C.F.R. § 20.1403 (e). Moreover, the Board notes that the Veteran has successfully initiated an appeal as to the RO’s March 2018 rating decision that assigned an effective date of October 13, 2017 for award of TDIU and there is no final adjudication of that assigned effective date upon which to consider CUE. Consideration of whether the implicit decline of jurisdiction over issue of TDIU prior to October 13, 2017 would have resulted in an ultimately different outcome is premature at this time. In this regard, a review of the claims file shows that the RO has acknowledged receipt of the Veteran’s December 2018 notice of disagreement and action on the part of the Board is not warranted at this time. See Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009). The issue of earlier effective date for award of TDIU has been referred to the Agency of Original Jurisdiction for appropriate action. A thorough review of the arguments received from the moving party asserting CUE in the May 2018 Board decision does not reveal any specific allegations of error of fact or law in the denial of increased rating for PTSD. Instead, the moving party’s statements, at most, express disagreement as to how the facts were weighed or evaluated or express general, non-specific allegations of error in applying the regulations in existence at the time of the decision. See 38 C.F.R. § 20.1403 (d)-(e). The moving party’s December 2018 statements, in essence, argue that he should have been assigned higher rating for his PTSD disability. This is not a sufficient basis for constituting a valid motion for revision or reversal based on CUE regarding Board’s May 2018 denial of increased rating for PTSD. Indeed, the moving party’s December 2018 motion for revision due to CUE refers to multiple errors (discussed above) made by the Board, but it fails to articulate how those errors concern the Board’s denial of the increased rating for PTSD disability. Because the moving party’s pleadings do not specifically identify any alleged error or errors in the Board’s May 2018 decision as to either facts or law, the Board concludes that the moving party’s motion to reverse or revise the Board’s December 1985 decision lacks the necessary specificity as required to constitute a valid motion for revision or reversal based on CUE. The Board finds that it would be prejudicial to the moving party for the Board to accept as legally sufficient a claim which is defined by law as not legally sufficient and which would foreclose any opportunity for the moving party to raise a legally sufficient claim. Therefore, the motion must be dismissed without prejudice to refiling. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.