Citation Nr: A20007068 Decision Date: 04/28/20 Archive Date: 04/28/20 DOCKET NO. 190930-34933 DATE: April 28, 2020 ISSUES 1. Entitlement to an effective date earlier than December 16, 2016 for the assigment of a 100 percent rating for post-traumatic stress disorder (PTSD) with unspecified depressive disorder, cocaine use disorder, alcohol use disorder, and opioid use disorder. 2. Whether clear and unmistakable error (CUE) was committed in an August 2015 rating decision by not inferring and subsequently granting entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to an effective date earlier than December 16, 2016 for the assigment of a 100 percent rating for PTSD with unspecified depressive disorder, cocaine use disorder, alcohol use disorder, and opioid use disorder is denied. The motion to revise the August 2015 rating decision on the basis of CUE with respect to raising the issue of entitlement to a TDIU in the August 2015 rating decision is denied. FINDINGS OF FACT 1. The August 2015 rating decision granted service connection for PTSD, and assigned a 70 percent rating. The RO did not infer, consider, or grant a claim for a TDIU. The Veteran did not express disagreement or submit new and material evidence within one year and the decision is final. 2. The Veteran is in receipt of a 100 percent rating for PTSD from December 16, 2016, the date of application of a VA Form 21-0966, Intent to File. The issue of a TDIU became moot. 3. On September 30, 2019, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran implicitly requested an earlier effective date for the assignment of a TDIU. A TDIU is merely an increased rating of 100 percent. This challenge to the effective date of the current total rating was made by way of a “freestanding” claim. 4. The record contains almost no indication of an assertion of unemployability at the time of the August 2015 rating decision. 5. The Veteran has not alleged an error of fact or law in the August 2015 rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. CONCLUSIONS OF LAW 1. The claim for an effective date earlier than December 16, 2016 for the grant of an increased rating of 100 percent for PTSD is denied. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.400, 20.200, 20.201 (2018); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. The August 2015 rating decision, which did not infer and subsequently establish entitlement to a TDIU, was not clearly and unmistakably erroneous. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105, 4.16, 20.1403 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 13, 1979 to June 12, 1982. The Veteran’s second period of service was from June 13, 1982 to March 4, 1985. He received a dishonorable discharge for his second period of service ending in 1985. His DD-214 reflects a separation code of “JKM,” indicating misconduct (other). The narrative reason shows a pattern of misconduct. This matter is before the Board of Veterans Appeals (Board) on appeal from an August 2019 Appeals Modernization Act (AMA) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision considered the evidence of record on that date. The Veteran timely appealed this decision to the Board by requesting the AMA Direct Review docket for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). In the August 2019 AMA decision, the Agency of Original Jurisdiction (AOJ) did not make any binding favorable findings. See 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c)). The Board observes that during the pendency of his claim and prior to his appeal, a June 2019 rating decision found that the Veteran is competent. A July 2019 rating decision continued the noncompensable evaluation for bilateral inguinal hernia. These issues are still before the RO. Lastly, as a threshold matter, the Board has listed the underlying earlier effective date claim as the first issue (1) on the title page. This is because a total disability rating based on individual unemployability (TDIU) is merely an increased rating claim equivalent to a 100 percent rating being assigned. Because the specific issue for which he was rated as 100 percent disabling is PTSD, we have characterized the issue accordingly. Put simply, this first issue is essentially an earlier effective date claim for an increased rating for a de facto TDIU, albeit adjudicated in the context of PTSD. See generally AB v. Brown, 6 Vet. App. 35, 38 (1993). This is discussed further below. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). On September 30, 2019, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). By way of this document and its provisions, this case is now before the Board. The Veteran elected “Direct Review” review by the Board. The Board may only review those issues properly on appeal and the related evidence from before the Veteran elected higher level review. The Veteran declined a Board hearing. He attached a Brief with additional argument, which we discuss further below. The Veteran and his attorney were sent an October 4, 2019 VA AMA Notification Letter. It shows in part, “Since you selected the Direct Review option, you can’t submit any evidence to the Board. You can expect a decision on your case in an average of 365 days from today’s date.” The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to an effective date earlier than December 16, 2016 for the assigment of a 100 percent rating for post-traumatic stress disorder with unspecified depressive disorder, cocaine use disorder, alcohol use disorder, and opioid use disorder The Board incorporates its discussion from the sections above by reference. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a)(1). However, the effective date for an increase in disability compensation for a service-connected disability may be the date of a factually ascertainable increase in disability if it occurred within one year of the date of receipt of a claim for an increased rating. 38 C.F.R. § 3.400 (o)(2) (2017). In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. The Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. A review of the relevant procedural and evidentiary history is instructive. By way of background, VA received treatment records from the Social Security Administration (SSA) in February 2012 and March 2012. The records include a “Disability Report – Adult.” A review of this report shows that the Veteran stopped working on July 1, 2006. He had been working as a laborer for temporary agencies from 1998 to 2006, for 8 hours per day, 5 days per week. He listed the conditions affecting work as “Depression PTSD anxiety disorder” and “back pain.” He alleged not being able to work due to being in pain. He also wrote in hand-written remarks signed on July 21, 2011 that he cannot take any opiate pain medication, therefore, he is in constant pain. Impairment findings by the SSA were spine disorders, affective disorders, alcohol and substance addiction, and personality disorders. Based on the evidence of record at the time, the SSA ultimately determined on August 29, 2011 that the Veteran was (and is) disabled primarily due to a mood disorder and secondarily due to a substance abuse disorder. This represented a reopening and reversal of the August 15, 2011 prior determination, which denied benefits citing alcohol abuse. Specifically, the SSA modified its finding days after the August 15, 2011 disability determination, and found that the Veteran has marked limitations, primarily affective disorders, with a secondary of alcohol substance addiction disorders, and a spine disorder. Nevertheless, the favorable disability determination still shows that the Veteran’s statements were “Partially Credible” and that, “Credibility of the claimant’s current allegations is somewhat eroded due to the extent that his behavior is often considered to reflect drug seeking or drug-induced symptoms.” He was ultimately adjudicated as disabled. Next, the Veteran was afforded an August 2014 VA Initial PTSD examination at the Iowa City VA Medical Center (VAMC). The VA examination shows that the Veteran reported last working in 2005 and that he was unable to work while in prison. It shows, “Had good job performance. Unsure if he got fired – didn’t show up.” The following year, the August 10, 2015 rating decision in question granted service connection for post-traumatic stress disorder (PTSD), evaluating it as 70 percent disabling, and with an effective date of March 17, 2014. This is the date VA initially received the Veteran’s claim for this benefit, namely service connection for PTSD. In the process of this claim, available medical evidence was reviewed which included VA treatment reports and VA examination results. The Veteran did not express disagreement or submit new and material evidence within one year and the decision is final. More than one year later, VA received the Veteran’s VA Form 21-0966, Intent to File Claim for Compensation and/or Pension on December 16, 2016. He checked the box indicating that the claim was for “compensation.” This was construed as an increased rating claim for service-connected PTSD. Eventually, on February 23, 2017, VA received the Veteran’s VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. He alleges unemployability due to his service-connected PTSD. The form is largely blank. On March 30, 2017, VA received a duplicate VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran reported that he last maintained gainful employment in May 2006. The Veteran indicated that he has not tried to obtain employment since he became too disabled to work. Partially to assist with fully developing this new and distinct TDIU claim, the Veteran was afforded a May 23, 2017 VA Review PTSD examination at the Iowa VA Medical Center (VAMC). The VA examiner documented the relevant occupational and educational history: VETERAN IS 70 PERCENT SERVICE CONNECTED FOR POST TRAUMATIC STRESS DISORDER WITH UNSPECIFIED DEPRESSIVE DISORDER, COCAINE USE DISORDER, ALCOHOL USE DISORDER, AND OPIOID USE DISORDER [PTSD-PERSONAL TRAUMA SEXUAL TRAUMA/ASSAULT] AS PER RATING DECISION DATED 08/10/2015. HIS LAST C&P DBQ MENTAL DISORDERS EXAM WAS ON APRIL 28, 2014. THEREFORE, TODAY'S DBQ PTSD REVIEW EXAM WILL COVER TIME PERIOD SINCE THEN TO MAY 23, 2017. VETERAN HAS A HIGH SCHOOL EDUCATION AND SOME COLLEGE COURSES. HIS LAST EMPLOYMENT WAS AS DISH WASHER IN CEDAR RAPIDS, IOWA, IN 2006. HE IS CURRENTLY UNEMPLOYED. HE RECEIVES VA COMPENSATION. (capitalization in original). This examination also showed evidence of a total social and occupational impairment. Days later, a May 30, 2017 VA rating decision increased the evaluation of PTSD to 100 percent effective December 16, 2016, which is the date of the VA Form 21-0966, Intent to File Claim for Compensation and/or Pension. This rating decision included a review of all available VA treatment reports as well as VA examination results. The rating decision includes a finding that entitlement to a TDIU was moot in light of the 100 percent rating for PTSD. It also shows a finding, “[T]here was not evidence that the individual unemployability benefit could be granted on an earlier effective date; therefore, the individual unemployability benefit was considered moot.” Next, on September 30, 2019, the Veteran through his attorney submitted his VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) with attached Brief. The Veteran through his attorney essentially asserts that an earlier effective date for the 100 percent overall rating is warranted. In other words, this is partially a separate earlier effective date claim for the increased rating claim for PTSD or a TDIU as a form of increased, 100 percent rating. The August 2015 rating decision was final, and this was a separate increased rating claim. The Veteran through his attorney also explicitly alleges CUE in the August 2015 rating decision for failing to adjudicate the issue of a TDIU, which we discuss separately below. We have considered all additional arguments and evidence presented in the Brief. The Board’s inquiry in this case into the first issue which is essentially an earlier effective date claim for the 100 percent rating begins with the question of whether there is a valid basis to bring an earlier effective date claim for an increased rating. Indeed, a TDIU is merely an increased rating claim, and the Veteran seeks an earlier TDIU tantamount to the earlier 100 percent rating for PTSD that was eventually assigned. In this regard, the U.S. Court of Appeals for Veterans Claims (Court) in its decision in Rudd v. Nicholson, 20 Vet. App. 296 (2006) addressed the matter of the adjudication of claims for an earlier effective date for a VA benefit, where there is of record a prior final RO decision which considered and decided a claim for that identical benefit. In Rudd, the Court held that where a claim for an earlier effective date represents disagreement with an effective date assigned pursuant to a final RO rating decision, absent an attempt to vitiate the finality of that decision through an allegation of clear and unmistakable error in the decision, the claimant has merely raised a “freestanding” claim that cannot remove the finality of the decision which assigned the previous effective date. In addressing the Veteran’s contentions, the Board observes that in the September 2019 Brief attached to the NOD, the Veteran through his attorney essentially asserts that the June 2017 rating decision (dated May 30, 2017) did not deny entitlement to a TDIU because it only adjudicated the issue as moot because the Veteran was already in receipt of a total rating. The Board observes that the May 30, 2017 rating decision favorably increased the Veteran’s overall evaluation to 100 percent effective December 16, 2016, which is the date VA received his VA Form 21-0966, Intent to File Claim for Compensation and/or Pension. This rating decision was based on a review of available medical reports as well as VA examination results. Regarding an earlier effective date for this 100 percent rating, whether construed as related to a TDIU or PTSD increased rating claim, the Rudd decision precludes the Veteran from raising a “freestanding” earlier effective date claim regarding the now final August 2015 RO rating decision. The Veteran did not express disagreement or submit new and material evidence within one year. The prior decision was final. The August 2015 rating decision granted service connection for PTSD but is silent as to a TDIU. It is long-settled law that the Veteran may not advance a freestanding earlier effective date claim. This freestanding earlier effective date claim, to assign what amounts to an earlier 100 percent overall rating, is verboten under Rudd. Therefore, the Board finds that it is unable to grant an earlier effective date for the Veteran’s increased evaluation for PTSD because the August 2015 rating decision is final. Moreover, even assuming arguendo that a freestanding earlier effective date claim were permissible, though we do not concede this, the Board is also cognizant of the limited ruling of Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). Distinctly, the Veteran’s case is in the context of a rating decision granting entitlement to service connection for PTSD (at 70 percent), and not an increased rating claim evidencing a worsening of the severity of PTSD. The increased rating to 100 percent for PTSD stems from an entirely separate appeals stream. With that, the Veteran’s statements at the August 2014 VA examination were for the purposes of establishing service connection for that condition. Thus, the provisions of Rice v. Shinseki are not directly applicable here. In addition, we note that the RO granted service connection for PTSD, the benefit actively sought. The RO concluded, “This is an award of all benefits sought on appeal and the appeal is therefore considered satisfied in full.” See AB v. Brown, 6 Vet. App. 35, 38 (1993). Second, notwithstanding the procedural technicalities themselves, the attempt to revise a now-final rating decision explicitly violates Rudd. Rice allows raising a TDIU as a type of increased rating claim. The Veteran may not use Rice to attempt to impose a stand alone earlier effective date claim. In short, the August 2015 rating decision only granted service connection, and this is not a Rice situation that would stem from an increased rating claim. Furthermore, Rudd precludes any attempt to file a freestanding earlier effective date claim. Even if we were to assume that Rice is applicable to an initial grant of service connection, though we do not concede that it is and find otherwise, there was no inference of unemployability that should have been construed. We discuss this in the context of CUE further below, and incorporate those findings by reference. Therefore, no matter how it is characterized, the claim for an effective date earlier than December 16, 2016 for the grant of an increased rating of 100 percent for PTSD is not warranted. Based upon the governing law regarding the assignment of effective dates, the Board is constrained to find that the Veteran’s claim for an earlier effective date is precluded as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Whether clear and unmistakable error (CUE) was committed in an August 2015 rating decision by not inferring and subsequently granting entitlement to a TDIU The Board incorporates its discussion from the sections above by reference. Given the Veteran’s contentions, and the nature of the CUE claim, a review of the governing law is necessary. Total disability ratings 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, and that, if there are two or more 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. 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 clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105. A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C. § 5109A. Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). Clear and unmistakable error 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. 38 C.F.R. § 20.143. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). A determination that a prior determination involved CUE involves the following three-prong test: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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 clear and unmistakable error 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 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Further, 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 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. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, non-specific claim of “error” meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Notably, a determination of CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. May v. Nicholson, 19 Vet. App. 310, 313 (2005). Errors that cannot constitute CUE, pursuant to 38 C.F.R. § 20.1403 (d) and (e), include (1) a changed diagnosis, where a “new medical diagnosis... ‘corrects’ an earlier diagnosis considered in a Board decision;” (2) VA’s failure to comply with the duty to assist; (3) a “disagreement as to how the facts were weighed;” and (4) a subsequent change in interpretation of the statute or regulation that was applied in the Board decision. See Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). By way of additional background, due to an issue regarding competency, a July 2018 VA Review PTSD examination was ordered. This examination also continued to show evidence of total social and occupational impairment. Once again, this included a review of all available VA treatment reports and VA examination results. A June 12, 2019 VA Psychiatry Follow-Up from Cedar Rapids Iowa shows in part, “Living in shelter in Cedar Rapids since discharge from hospital. Before hospitalization, living in Puerto Rico but moved back to Iowa to see help for opioid use. 100% service connected. Has not been getting paychecks through VA for disability, but refuses to elaborate on why. Getting some financial support from mother at this time.” Additional VA treatment records are substantially the same, and show impressions of and treatment for substance abuse and PTSD. Next, on September 30, 2019, the Veteran through his attorney submitted his VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) with attached Brief. The Veteran through his attorney essentially asserts that the August 2015 (referred to as September 21, 2015) rating decision contains CUE because, “at the time, the record contained evidence of unemployability due to the veteran’s service-connected acquired psychiatric disorder and the rating decision failed to adjudicate an implicit claim for a total disability rating based on individual unemployability (a ‘TDIU.’)” He asserts that the previously described SSA records show evidence of unemployability, at least in part, due to mood disorders. In addition, the Veteran through his attorney contends that the implicit denial doctrine does not apply to a TDIU claim where VA failed to adjudicate the implicit claim for a TDIU. Counsel cites a nonprecedential case. The Veteran through his attorney explains that adjudication on the merits is required for the RO to have extinguished the already-pending claim in line with counsel’s reading that a TDIU should have been inferred in August 2015. The Veteran contends that CUE was committed in the August 2015 rating decision that did not infer and subsequently grant entitlement to a TDIU. Our review of the evidence finds that the August 2015 rating decision with September 2015 notification letter, and the record, contain almost no indication of an assertion of unemployability, and these arguments do not rise to the level of identifying a grave error necessary to find CUE. There was no clear assertion of unemployability. The RO’s “non-determination,” passively declining to infer the issue, was made after a review of the available subjective and objective medical evidence, including available medical reports and VA examination results. After reviewing this evidence, the RO did not make a determination that the evidence at the time rose to such a level as to lead the RO to infer a claim that the Veteran was unable to secure or follow substantially gainful employment. The Board observes that clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A clear and unmistakable error as alleged by the Veteran through his attorney is not shown in the evidence of record for the August 2015 rating decision. The Board is reminded that an assertion of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 23 (1991). The Board has reviewed the record, and ultimately finds that the Veteran and his attorney fail to meet this high burden. First, the Veteran through his attorney contends that the Board should find CUE in the RO’s failure to infer a TDIU claim. However, in the August 2015 rating decision, the RO did not have evidence of unemployability to the level which reasonable minds could not differ such that it is undebatable that the RO should have inferred a TDIU claim. Moreover, pursuant to 38 C.F.R. § 20.1403 (d) and (e), there is no argument advanced and no evidence of a (1) a changed diagnosis, where a “new medical diagnosis... ‘corrects’ an earlier diagnosis considered in a Board decision;” (2) VA’s failure to comply with the duty to assist; (3) a “disagreement as to how the facts were weighed;” and (4) a subsequent change in interpretation of the statute or regulation that was applied in the Board decision note other factors other than service. The evidence showed a checkered employment history and a period of incarceration. The RO considered this, as employment (though not unemployability) is referenced in multiple lines of the rating decision. The RO did not find evidence of unemployability which compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. We note other factors. We also note the remote submission of his VA 21-8940 in February 2017. In short, there was no indication of an assertion of unemployability in the August 2015 rating decision, and any evidence discussing the Veteran’s employment history does not meet the high bar for a successful CUE claim for failure to infer a claim from the record. Next, the Veteran through his attorney has continued to rely on 2012 SSA records showing impairment, at least due to mood disorders. The second part of that disability picture is that they also show a substantial history of drug and alcohol abuse. And although various mood disorders and behaviors, however diagnosed, may be components of PTSD, the RO still considered this evidence and exercised its judgment in not inferring a TDIU claim. The Veteran did not appeal this rating decision or submit new and material evidence within one year. He is only now seeking its revision pursuant to the considerably higher standard of CUE. In short, with respect to the Veteran and his attorney’s first contention, the RO did not make the kind of error of fact, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See 38 C.F.R. § 20.1403. The RO gave probative weight to the findings of the August 2014 VA PTSD examination, showing impairment due to PTSD but not rising to the level of unemployability, and certainly not to the level required for revision of the rating decision due to CUE. Turning to the Veteran’s other main contention that the implicit denial doctrine does not apply to a TDIU claim where VA failed to adjudicate an implicit claim for a TDIU, we find this argument to be unpersuasive. The issue at bar is whether there is CUE in the RO’s failure to infer, or raise, the TDIU claim from the record in the August 2015 rating decision. The issue does not stem from a prior implicit denial. Consistent with counsel’s approach that the implicit denial requires adjudication, we agree that the RO never adjudicated the TDIU issue in the first instance in the August 2015 rating decision. It was not raised. There is almost no indication of an assertion of unemployability. The Veteran through his attorney cites Andrews in support of this incorrect characterization of the procedural history as one of an implicit denial for a TDIU that was not properly adjudicated. Andrews v. McDonald, 646 Fed. Appx. 1001, 1005-08 (Fed. Cir. 2016). The Veteran through his attorney writes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) confirmed, “[i]mplicit denial requires adjudication[;] [i]t does not shield the government from failure to adjudicate.” Id. This selectively plucked language is misleading because it is not in the context of the instant case. Distinctly, the case at bar includes no implied claim or implicit denial. There was almost no indication of unemployability in August 2015. There is therefore no failure to adjudicate this issue. The Board does not necessarily contend, as in Andrews, that the government may, as a legal matter, fail to adjudicate a claim and in doing so assume it was implicitly denied. Here, the RO explained in the June 2017 (dated May 30, 2017) rating decision that the TDIU issue (once properly raised) is moot in light of the 100 percent rating for PTSD. Lastly, regardless of the procedural dissimilarities, the Veteran through his attorney concedes that Andrews is non-precedential. Next, the Veteran through his attorney also asserts that the June 2017 rating decision failed to adjudicate the issue on the merits. Even assuming that the TDIU claim was never fully adjudicated on the merits in June 2017, though we do not concede this, such a finding does not demonstrate that there has been CUE in failure to infer the issue of a TDIU in the August 2015 rating decision. We also note other prominent factors affecting employability. A “mood disorder” construed to be PTSD or some symptomatic overlap is still not the only factor affecting unemployability. The Veteran’s February and March 2017 VA Form 21-8940s shows that the Veteran has not sought work since he became unemployable years earlier. He was also incarcerated for part of the time. The fact that adjudication on the merits may override the implicit denial doctrine has no bearing on the validity of the June 2017 rating decision showing that a TDIU is moot. The rating decision included a favorable grant of a 100 percent rating for PTSD dating back to 2016 stemming from an increased rating claim. Lastly, the Veteran’s application of the implicit denial doctrine is questionable. For example, if implicit denial requires adjudication, and there was no implicit denial in the August 2015 rating decision because the issue was not inferred, then the fact that an implicit issue requires adjudication further support’s VA’s position that the issue should not be retroactively inferred through CUE. Overall, we have found that clear and unmistakable error is not shown in the evidence of record at the time of the August 2015 rating decision, and the RO did not fail to infer a claim for a TDIU. The Veteran has consistently reported that he was last working in 2005 and 2006, several years prior to either rating decision discussed by the Veteran through his attorney (August 10, 2015 with notification letter dated September 18, 2015 and May 30, 2017 with notification letter dated June 1, 2017). The RO specifically considered all possible claims that could be reasonably raised or inferred. The RO made a passive choice that the evidence did not rise to the level of supporting a claim for the Veteran being incapable of gainful employment (which would include sedentary and non-sedentary type employment). Likewise, it did not propose, infer, or otherwise find assertions of a myriad of other meritless claims lacking supporting evidence that one could hypothetically file years later. In sum, RO correctly adjudicated the TDIU claim when the Veteran first raised the issue of unemployability due to PTSD by way of the increased rating claim for PTSD. There is no question that the facts known at the time were before the adjudicator. Further, the Board finds that the RO did not misapply the law in the August 2015 rating decision. No error occurred based on the record and the law existing at the time. This issue did not exist and was not adjudicated in the August 2015 (also referenced as the September 2015) rating decision, and as such, there can be no failure to properly adjudicate it. Put differently, there is no indication of an assertion of unemployability, and that would never rise to the level necessary for CUE. Thus, there was no grave error committed by the RO that was “undebatable.” In reaching this conclusion, the Board is mindful the high bar to prevail in a CUE claim. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). A TDIU was not otherwise raised prior to the Veteran’s December 16, 2016 total rating, at which point the issue became moot. There is no basis for revision of the August 2015 rating decision. Therefore, we find that the August 2015 rating decision, which did not infer and subsequently establish entitlement to a TDIU, was not clearly and unmistakably erroneous. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105, 3.310, 4.16, 20.1403 (2018). Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). In reaching this conclusion, the Board finds that the evidence is not clear and unmistakable that the RO should have inferred and subsequently granted entitlement to a TDIU. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, Associate 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.