Citation Nr: 21004843 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 09-48 384 DATE: January 28, 2021 ORDER Due to a clear and unmistakable error, a May 23, 2019, decision of the Board of Veterans’ Appeals (Board) decision is revised to reflect that the grant of a total disability rating based on individual unemployability (TDIU) is effective March 27, 2007. FINDINGS OF FACT 1. The May 2019 decision of the Board granted an increased rating of 50 percent for the Veteran’s posttraumatic stress disorder (PTSD) effective March 2, 2001, and a rating of 70 percent effective December 12, 2008. 2. The May 2019 Board decision also granted service connection for tinnitus, denied a higher rating for the residuals of a gunshot wound, granted a TDIU effective December 20, 2002, and remanded other issues. 3. As the result of the partial grant of benefits in the May 2019 Board decision, prior to March 27, 2007, the Veteran was in possession of a 50 percent rating for PTSD and a 20 percent rating for the residuals of a gunshot wound. 4. As the result of the partial grant of benefits in the May 2019 Board decision, beginning on March 27, 2007, the Veteran had at least a 70 percent combined disability rating, with one disability rated at least 40 percent. CONCLUSION OF LAW The criteria for revision of the May 2019 Board decision in so much as it granted a TDIU prior to March 27, 2007, on the basis of clear and unmistakable error have been met. 38 U.S.C. §§ 5109A, 5110, 7111 (2019); 38 C.F.R. §§ 4.16, 4.25, 20.1400, 20.1407. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Marine Corps from August 1967 to June 1969. He passed away in January 2011. The appellant in the appeal leading to the May 2019 Board decision is his surviving spouse. This matter comes before the Board on its own July 2020 motion to revise the May 2019 Board decision on the grounds of clear and unmistakable error in that decision that, in pertinent part, granted entitlement to a TDIU prior to March 27, 2007. Although this decision revises the May 2019 Board decision to change the effective date of a grant of entitlement to a TDIU, as explained in the July 2019 supplemental statement of the case, the issue of entitlement to a TDIU prior to March 27, 2007, remains on appeal before the Board. That issue will be the subject of a separate Board decision. Legal Standard A prior final Board decision must be reversed or revised where evidence establishes that there is clear and unmistakable error in the decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of clear and unmistakable error, except for those decisions which have been appealed to and decided by the United States Court of Appeals for Veterans Claims (Court) and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The Board may undertake a review on its own motion. See 38 C.F.R. § 20.1407. When this occurs, 60-day notice must be provided to allow for a response. Id. Here, the appellant was informed of the Board’s motion in a July 2020 letter. She provided a response to that letter in correspondence received in September 2020. Motions for review of prior Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. 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. Review for clear and unmistakable error 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 clear and unmistakable error, 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. Clear and unmistakable error is established when the following conditions are met. First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Second, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.” Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Finally, the error must have “manifestly changed the outcome” of the decision being attacked on the basis of clear and unmistakable error at the time the decision was rendered. Id. at 313-314, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting “manifestly changed the outcome” language in Russell). Examples of situations that are not clear and unmistakable error 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). Clear and unmistakable error 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). Analysis The Board finds that its May 2019 decision contains a clear and unmistakable error in granting a TDIU prior to March 27, 2007. The claim that led to the Board’s decision in May 2019 began when the Veteran submitted a claim in March 2007 for a TDIU as well as seeking increases for his PTSD, service connection for tinnitus, an increased rating for an arm disability, and service connection for diabetes mellitus. The Veteran’s claim for service connection for diabetes mellitus was granted in a November 2007 rating decision and an initial rating of 20 percent was assigned for diabetes mellitus effective March 27, 2007. The Veteran subsequently challenged the initial rating of that decision concurrently with his ongoing claims for higher ratings for PTSD, gunshot wound residuals, and a TDIU. The Board remanded all issues on appeal in August 2016 for further development. It then issued the May 2019 decision that is the subject of the current motion. In that decision, the Board granted service connection for tinnitus, denied a higher rating for gunshot wound residuals, granted a 50 percent rating for PTSD beginning March 2, 2001, and a 70 percent rating effective December 12, 2008, and granted a TDIU effective December 20, 2002. The Board also remanded the issues of higher ratings for diabetes mellitus and erectile dysfunction. In its grant of the TDIU effective December 2002, the Board made a series of clear and unmistakable factual and legal errors. It began its discussion by correctly noting that a TDIU may be assigned when a schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling; or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). This regulation has not substantially changed since the time of the May 2019 Board decision. After correctly stating the law regarding the assignment of a schedular TDIU, the Board made its first error in determining that the schedular requirements set forth in 38 C.F.R. § 4.16(a) had been met. The Board explained that, as a result of the partial grant in its May 2019 decision, the Veteran was in possession of at least a 70 percent rating throughout the claim period with PTSD rated at 50 percent. The appellant agreed with the Board’s May 2019 analysis in correspondence received in August 2019. There, she argued that the 50 percent PTSD rating dating back to March 2001 combined with the 20 percent rating for a gunshot wound for a 70 percent overall evaluation. This is not correct. Although not the most elegant to describe, the applicable regulation governing the evaluation of multiple service-connected disabilities is set forth at 38 C.F.R. § 4.25. This regulation instructs that simply adding the disability ratings for the various service-connected disabilities is not permitted. Rather, the Board must apply the Combined Ratings Table (Table) set forth in that regulation. To use the Table, a rating official first arranges the distinct service-connected disabilities in order of their individual evaluation, from the most severe to the least. After arranging the disabilities in order of severity, the rating official will identify the disability percentage in the left column that matches the evaluation of the most severe service-connected disability. Then, the rater will use that row in the Table and identify the value that corresponds with the column for the rating of the second most severe service-connected disability. This process is repeated until each service-connected disability’s rating has been incorporated. To arrive at the proper overall combined evaluation, the Board must then convert that final incorporated number to the “nearest degree divisible by 10.” 38 C.F.R. § 4.25(a). As the result of the May 2019 partial grant found in the Board decision, prior to March 27, 2007, the Veteran was only service connected for PTSD, with a 50 percent rating during the applicable period, and the residuals of a gunshot wound that were rated as 20 percent disabling. The appellant is correct that if one were to simply add those ratings, the schedular criteria for a TDIU set forth at 38 C.F.R. § 4.16(a) would have been met. However, applying those ratings to the Table, those schedular requirements are not met. The value in the Table that corresponds with the intersection of a 50 percent rating and a 20 percent rating is 60. No rounding is needed as that is a number divisible by 10. As such, the clearly and unmistakably correct application of the Table to the Veteran’s disability ratings prior to March 27, 2007, arrives at a combined disability rating of 60 percent. As the Veteran did not have a single disability rated at 60 percent and he did not have a combined disability rating of 70 percent or higher for that period, it is clear and unmistakable error for the Board to have determined that the schedular criteria for a TDIU were met. While the schedular requirements set forth at 38 C.F.R. § 4.16(a) were clearly and unmistakably not met, VA’s regulations also allow for an extraschedular award of a TDIU. See 38 C.F.R. § 4.16(b). However, it is absolutely clear from the text of the May 2019 decision that no such theory was considered. Moreover, although discussing extraschedular ratings in the context of 38 C.F.R. § 3.321(b)(1), the United States Court of Appeals for Veterans Claims (Court) has explicitly held that all questions in a matter subject to decision by the Secretary shall be subject to one review on appeal to the Secretary and that such final decisions on appeals will be made by the Board. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). Like 38 C.F.R. § 3.321(b)(1), the applicable regulation for extraschedular consideration of a TDIU directs the rating official to submit such consideration to the Director, Compensation Service for an initial determination. 38 C.F.R. § 4.16(b). Given the statutorily-provided right to an appeal afforded to a claimant, the Court in Floyd explicitly held that the Board is precluded from assigning an extraschedular rating in the first instance. See also Wages v. McDonald, 27 Vet. App. 233 (2015) (The Board is authorized to award extraschedular TDIU after obtaining the Director's decision.) As indicated above, the appellant submitted a written statement that was received in September 2020. In that statement, she reiterated that the Veteran had not been able to hold a full-time job after 1998 and stated that he experienced ongoing and severe psychological symptoms from the point he lost his job to his death. She also questioned why the Board did not grant an increase to 70 percent or unemployability prior to 2001 apparently referring to the May 2019 Board decision. The Board sympathizes with the appellant’s position and does not seek to minimize the Veteran’ symptoms or her difficulties with the Veteran’s service-connected disabilities prior to his death. However, the Board lacks the authority to revise or reverse a final Board decision at the present time absent a motion on the basis of clear and unmistakable error. The only motion of that type is the Board’s own motion from July 2020. After reviewing the evidence and law in effect at the time of the May 2019 Board decision, the Board finds that the May 2019 decision clearly and unmistakably erred in determining that the schedular requirements of 38 C.F.R. § 4.16(a) were met. As such, it lacked the authority to grant a TDIU. Had the Board not made that error, it would have clearly and unmistakably granted a TDIU effective the date that the Veteran met the schedular requirements (i.e. March 27, 2007). The May 2019 Board decision is therefore revised to reflect that the effective date of the grant of a TDIU is March 27, 2007. See 38 U.S.C. § 7111. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, 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.