Citation Nr: 21064447 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-29 794 DATE: October 20, 2021 ORDER The Veteran's claim of clear and unmistakable error (CUE) in prior rating decisions which denied service connection for left knee polyarthralgia, is insufficient and is dismissed. The Veteran's claim of CUE in prior rating decisions which denied service connection for right knee polyarthralgia, is insufficient and is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is dismissed. REMANDED Entitlement to a rating in excess of 50 percent disabling for service-connected dysthymic disorder is remanded. FINDINGS OF FACT 1. While the Veteran has plead his reasons for his CUE claims with specificity, that the agency of original jurisdiction (AOJ) failed to consider evidence submitted in December 2015, he failed to specify in which rating decision CUE was committed. 2. During the July 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to a TDIU due to service-connected disabilities; there are no further allegations or questions or factual or legal error remaining for appellate consideration in the matter. CONCLUSIONS OF LAW 1. The criteria for dismissal of a claim of CUE in denying service connection for left knee polyarthralgia have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 3.105, 20.204, 20.1404 (b). 2. The criteria for dismissal of a claim of CUE in denying service connection for right knee polyarthralgia have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 3.105, 20.204, 20.1404 (b). 3. The criteria for withdrawal of an appeal seeking entitlement to a TDIU due to service-connected disabilities have been met; the Board has no further jurisdiction in this matter. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1970 to August 1974, in the United States Army from March 1976 to July 1988 and in the United States Air Force from July 1990 to October 1994. In an April 2017 rating decision the AOJ granted the Veteran's claim for a TDIU based on his service-connected migraines and dysthymic disorder. The AOJ assigned an effective date of September 1, 2014. The AOJ noted that the effective date was based on the Veteran's reports of last working in August 2014, and therefore his effective date was the first day of the month following his last date of employment. However, the AOJ noted that such was only a partial grant and therefore the issue remained on appeal. In July 2021 the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. Withdrawn Claim Entitlement to a TDIU due to service-connected disabilities is dismissed. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511 (a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204 (b)(3). The United States Court of Appeals for Veterans Claims (Court) recently held that a verbal withdrawal of an issue at a Board hearing must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal decision must include findings as to all three elements. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); see also DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). Over the course of the July 2021 hearing (including in prehearing discussions), the undersigned, the Veteran, and his representative discussed the claim seeking entitlement to a TDIU and the consequences of withdrawing such claim. Thereafter, the Veteran explicitly, unambiguously, and demonstrating a full understanding of the consequences, affirmed his intent to withdraw the claim. Therefore, there remains no further allegations or questions of factual or legal error remaining for appellate consideration and the Board has no further jurisdiction in the matter. Consequently, it is dismissed. CUE Claims The Veteran's claims of CUE in prior rating decisions which denied service connection for left and right knee polyarthralgia, are insufficient and are dismissed. The Board does not reach substantive arguments related to the Veteran's CUE claims. The claims are dismissed because they were not plead with the requisite specificity. Generally, CUE must be plead with some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). 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 the requirement that a CUE motion be pled with specificity. Any motion which fails to comply with these requirements shall be dismissed without prejudice to re-filing. 38 C.F.R. § 20.1404 (b); Disabled American Veterans v. Gober, 234 F.3d 682, 698-99 (Fed. Cir. 2000). Where there are multiple decisions, a failure to specify the dates of the RO (or Board) decision being collaterally attacked, renders the pleading of CUE insufficient. Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994). Each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). The Board notes that the obligation to read pro se filings liberally does not apply to this case because the Veteran is represented by counsel. Andrews v. Nicholson, 421 F.3d 1278, 1283-84 (Fed. Cir. 2005). In this case the Veteran's claims have a lengthy procedural history. Initially the Veteran filed claims for service connection for his bilateral knees in 1988 which were ultimately denied in a September 1995 rating decision. The Veteran filed a notice of disagreement (NOD) and a statement of the case (SOC) was issued in July 1996. However, the Veteran did not perfect his appeal. In February 2010 the Veteran first petitioned to reopen his claims which was denied in an August 2010 rating decision. In June 2011 the Veteran submitted a NOD and a SOC was issued in August 2014. However, again the Veteran failed to perfect his appeal. In December 2014 he again petitioned to reopen his claims which was denied in August 2015. He filed again to reopen and reconsider his claims in September 2015 which was denied in a November 2015 rating decision. The Veteran filed his motion for CUE in February 2016. He stated that he believed "that the VA made a Clear and Unmistakable error as [that] the VA did not account or consider my medical evidence submitted on 12/8/2015 towards my request for reconsideration on my claim for: Bilateral Knee Polyarthralgia." However, the Board notes that the Veteran and his representative failed to clarify which decision contained CUE. As there are multiple rating decisions of record which previously denied the Veteran's claims, the non-specific CUE claim is insufficient. See Mindenhall, 7 Vet. App. at 275. The Veteran and his representative are advised that a CUE claim must be plead with specificity, including a clear statement as to which decision contains CUE. For the foregoing reasons, the Veteran's CUE claims are dismissed without prejudice. The Veteran is free to submit a properly pled motion of CUE at any point in the future. REASONS FOR REMAND Entitlement to a rating in excess of 50 percent disabling for service-connected dysthymic disorder is remanded. Relevant to the Veteran's claim for an increased rating for his dysthymic disorder, the Court has held that, where the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board finds that the Veteran's claim for an increased rating for his dysthymic disorder must be remanded in order to afford him a contemporaneous VA examination in order to assess the current nature and severity of his service-connected disability. In this regard, the record reflects that the Veteran was most recently afforded a VA Mental Health examination in September 2012. Since the September 2012 examination, the Veteran has noted an increase in the severity of his symptoms and alleges that a higher rating is warranted. Considering the allegations of worsening symptoms, the degenerative nature of the Veteran's condition, and the amount of time which has passed since the Veteran's prior examination, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine his current level of impairment with regard to his service-connected dysthymic disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the file. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected dysthymic disorder. The claims file, to include a copy of this remand, must be made available and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that the Veteran's service-connected dysthymic disorder is worse than shown on prior examination. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.