Citation Nr: 19190408 Decision Date: 12/02/19 Archive Date: 12/02/19 DOCKET NO. 17-33 627 DATE: December 2, 2019 ORDER The claim of clear and unmistakable error (CUE) in the May 2011 rating determination denying a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is denied. An effective date of November 13, 2013, for the assigment of a TDIU is granted. FINDINGS OF FACT 1. In a May 2011 rating decision, the Regional Office (RO) denied a TDIU; while the Veteran filed a notice of disagreement and a statement of the case was issued, the Veteran did not perfect his appeal nor was evidence received which would have allowed the claim to remain open, thus, the decision became final. 2. The first evidence of record indicating that the Veteran filed an application to reopen his previously denied claim for entitlement for TDIU was received by VA on November 13, 2014. 3. After the Veteran filed an application for a TDIU on November 13, 2014, the RO, in a May 2015 rating decision, awarded the Veteran a 100 percent schedular disability evaluation for his now reclassified PTSD with dementia of Alzheimer type and assigned an effective date of November 13, 2014 (the date of receipt of the application for a TDIU)). 4. The Veteran has not alleged any errors of fact or law in the May 2011 rating denial that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the errors. 5. The Veteran filed his formal claim of entitlement to TDIU on October 13, 2014, a March 2015 VA examination performed in conjunction with his claim revealed the symptoms associated with his PTSD, which served as the basis for the assigment of a 100 percent schedular evaluation from November 13, 2014, had increased in the last several years, causing him to be unemployable as a result of his PTSD; therefore, it is factually ascertainable that the Veteran was precluded from securing and following a substantially gainful occupation from November 13, 2013. CONCLUSIONS OF LAW 1. The May 2011 rating decision which denied entitlement to TDIU was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2018). 2. The criteria for an effective date of November 13, 2013 for the grant of a TDIU rating have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.16 (2018); Harper v. Brown, 10 Vet. App. 125 (1997). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran, who is the appellant, had active service from March 1969 to March 1971. A videoconference hearing was held in September 2019 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran claims that an earlier effective date, prior to November 13, 2014, the date of the assigment of a schedular 100 percent evaluation for PTSD, should be assigned for the grant of TDIU. He further maintains that his service-connected disabilities of PTSD, rated as 50 percent disabling; ischemic heart disease, rated as 60 percent disabling; diabetes mellitus, rated as 20 percent disabling; and right and left lower extremity peripheral neuropathy, each rated as 10 percent disabling; at the time of the May 2011 rating determination rendered him unemployable. He has claimed that there was CUE in the May 2011 rating decision that denied TDIU. CUE At the outset, the Board will consider the Veteran's claim for CUE. In March 2011 the Veteran submitted a claim for TDIU. A May 2011 rating decision denied his claim. The Veteran essentially contends that the May 2011 denial should be reversed on the grounds that the RO committed CUE. He indicates that the rating decisions contained faulty reasoning in that several treatment providers and one VA examiner indicated that his PTSD, in part, caused him to be unemployable. The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). "Clear and unmistakable error' requires that error, otherwise prejudicial, must appear undebatable." Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-4. "It must always be remembered that CUE is a very specific and rare kind of 'error'." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has propounded the following three-pronged test for determining when there was CUE present in a prior decision: (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. Russell, 3 Vet. App. at 313-14. CUE that requires revision of a prior final rating action exists only where it appears "undebatably" that "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied." Russell, 3 Vet. App. at 313. In Fugo, 6 Vet. App. at 40, the Court refined and elaborated on the test set forth in Russell. The Court stated that CUE was a very specific and rare kind of "error." It was the kind of error, of fact or law, that when called to the attention of later reviewers compelled a conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. In support of his claim, the Veteran has noted several findings of record at the time of the prior denial. These include a January 2011 report from the Albuquerque Vet Center, wherein D. H., MA, LMHC, diagnosed the Veteran as having PTSD, Alzheimer’s Disease, Type II DM, and ischemic heart disease. He assigned a GAF score of 32 at that time. He noted that the Veteran had experienced major and long-standing problems with sleep disturbance, impaired impulse control resulting in unprovoked outbursts of anger, irritability, near continuous anxiety, pronounced affective lability, hypervigilance, hyperstartle response, flashbacks, difficulty adapting to stressful circumstances, significant impairment in establishing and maintaining effective relationships, intrusive thoughts of combat events on a daily basis, as well as occupational and social impairment with reduced reliability and productivity. These symptoms had resulted in the Veteran's professional underemployment. The Veteran and his representative also referenced the results of a November 2010 VA examination, wherein the Veteran was diagnosed as having PTSD, Alzheimer’s dementia, diabetes mellitus, hypertension, and coronary artery disease. The examiner noted that the Veteran’s GAF score was in the 40ish range. He stated that the Veteran’s PTSD was responsible for lifelong impairment in employment and social function mood and that the PTSD preceded the Alzheimer’s disease. He noted that Alzheimer’s was more recent and accounted for inability to handle finances and care for himself and that he had to be monitored. He indicated that it was likely that PTSD was responsible for 50 percent of his GAF and Alzheimer’s was responsible for the other 50 percent. Also of record at the time of the prior denial were the results of the VA examinations performed in conjunction with the Veteran’s claim for a TDIU. At the time of an April 2011 VA examination, the examiner indicated that the Veteran's service-connected ischemic cardiac disease, diabetes with peripheral neuropathy and hypertension were not severe enough to render him unable to secure and maintain substantially gainful employment from a physical standpoint. He noted that there might be potential for cardiac ischemia in a very physically intensive job; but, a job with light to moderate activity should not cause a problem. The examiner further stated that in spite of the nonservice-connected degenerative joint disease, bilateral knees, the Veteran was physically fit. The examiner noted that the early onset Alzheimer's would preclude any gainful employment since he would be a liability to himself and his employer. He stated that the Veteran’s nonservice-connected early onset Alzheimer's disability rendered him unable to secure and maintain substantially gainful employment. Also of record were the results of an April 2011 VA PTSD examination, wherein it was noted that the Veteran’s Alzheimer's dementia constituted the largest barrier for his employability. It was indicated that if he could not understand and remember, if he could not sustain concentration and persistence, if he was not oriented to time and place, and if he had chronic severe impairment of short and long-term memory, the Veteran could not work any physical or sedentary job. The examiner stated that based upon the Veteran's service-connected PTSD and disregarding any non-service-connected disabilities, the Veteran was able to maintain substantially gainful employment. There was no functional impairment attributable to his PTSD alone with respect to physical and sedentary activity. However, his nonservice-connected Alzheimer's dementia did present a chronic and severe barrier for employment. A review of the record reveals that the RO addressed the Veteran's contentions, discussed the results of the VA examinations, including the medical findings at the time of the examinations, and applied the appropriate rating criteria, including the citing to the appropriate diagnostic codes when assigning the above disability evaluations. The Veteran disagrees with the way in which the RO weighed the evidence in its March 2011 decision. However, a disagreement as to how evidence was weighed cannot rise to the level of CUE. Crippen v. Brown, 9 Vet. App. 412, 421 (1996). The Veteran has not shown, and the Board cannot find, that the RO applied the incorrect law or considered the incorrect facts as they then existed; nor is there evidence of an undebatable error that manifestly changed the outcome. Consequently, the Board finds that there was no clear and unmistakable error in the March 2011 RO decision that denied the Veteran’s claim for a TDIU. EED A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). According to 38 C.F.R. § 3.400(o)(2), the effective date of an increase in compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the date of receipt of the claim. See 38 C.F.R. § 3.400(o)(2) (2018). See also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2018). A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2018). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2018). Here, the Veteran contends that he is entitled to an effective date prior to November 13, 2014, the date the 100 percent schedular disability evaluation was assigned for the Veteran’s PTSD with dementia, which was adjudicated as part of the Veteran’s TDIU claim received on November 13, 2014. Essentially, he asserts that he has been entitled to TDIU since the original claim. As discussed, the Veteran previously raised a claim of entitlement to TDIU in March 2011, however that claim was denied in a May 2011 rating determination. He did not perfect his appeal and it became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.1104 (2018). The Board has reviewed the record dating from the May 2011 denial, and has not identified any communication from the Veteran, which may be interpreted as a prior unadjudicated TDIU claim. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991); 38 C.F.R. § 20.202 (2018) (VA must liberally construe all documents filed by a claimant); see also Roy v. Brown, 5 Vet. App. 554 (1993). Neither the Veteran nor his representative has identified any specific document contained within the claims file that constituted a TDIU claim which was overlooked or misconstrued by the RO following the issuance of the May 2011 rating decision. Critically, the record demonstrates that, following the May 2011 decision, the Veteran did not assert entitlement to TDIU until November 13, 2014. To the extent that the Veteran is contending that his service-connected symptomatology warranted an assignment of TDIU from the date of the May 2011 claim, this amounts to an argument couched in equity. The Board, however, is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). In short, although the record does document an earlier claim for a TDIU, the claim was finally resolved, and, thus, provides no basis for an earlier effective date for the TDIU ultimately awarded. Notably, an application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. "The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application." Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). As noted above, the May 2011 rating decision denying entitlement to a TDIU was final. In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of that claim. Flash v. Brown, 8 Vet. App. 332 (1995). As previously discussed, CUE has not been found in the prior rating decision. However, as noted above, the effective date of an increase in compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the date of receipt of the claim. In conjunction with his claim, a March 2015 VA examination was performed which revealed the symptoms associated with the Veteran’s PTSD, which served as the basis for the assigment of a 100 percent schedular evaluation from November 13, 2014, had increased in the last several years, causing him to be unemployable as a result of this PTSD. Based upon the relevant evidence of record, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the preponderance of evidence weighs in favor of an earlier effective date for the grant of TDIU of one year prior to the Veteran's formal claim, or from November 13, 2013. Crucially, as indicated above, the evidence indicates that the Veteran's impairment from his PTSD, when combined with his other service-connected disabilities, was of such severity to preclude employment prior to November 13, 2014. The Board also notes that, as discussed in detail above, the Veteran has met the schedular criteria for a TDIU rating for the entire period on appeal. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that an earlier effective date of November 13, 2013 is warranted for the grant of the Veteran's TDIU claim. See 38 U.S.C. §§ 5107, 5110(b)(2); 38 C.F.R. § 3.102; Harper, 10 Vet. App. 125. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, Counsel 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.