Citation Nr: 21025688 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-28 934A DATE: April 28, 2021 ORDER The May 24, 2019 motion to revise a March 4, 2019, decision of the Board of Veterans’ Appeals (Board) on the basis of clear and unmistakable error is denied. FINDINGS OF FACT 1. The Veteran was notified on April 28, 2008, that his claim for increased evaluations had been denied. 2. The Department of Veterans Affairs (VA) did not receive any new, material evidence that had not been previously considered in the Veteran’s denied increased rating claim in the year following the Veteran’s notification of the April 2008 denial. 3. After the April 28, 2008, decision, VA did not receive an additional claim for an increased evaluation in the year that followed. 4. After the April 28, 2008, decision, VA did not receive a claim for a total disability rating based on individual unemployability (TDIU) until April 30, 2009. 5. After the April 28, 2008, decision, the Veteran did not notify VA of ongoing VA treatment until April 30, 2009. 6. The Board granted the Veteran’s April 30, 2009, claim for a TDIU in a March 4, 2019, decision in which it granted an effective date of April 30, 2009. CONCLUSION OF LAW The criteria for revision of the March 4, 2019, Board decision on the basis of clear and unmistakable error have not been met. 38 U.S.C. §§ 1151, 5109A, 7111; 38 C.F.R. §§ 20.1400-1411. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board from a motion for revision of a previous Board decision on the basis of clear and unmistakable error (CUE) submitted by the Veteran’s representative on October 24, 2019. Whether the Board committed a clear and unmistakable error in its March 2019 decision by failing to recognize that an April 28, 2008, rating decision remained pending due to the submission of new and material evidence within a year of that decision Legal Standard A prior final Board decision must be reversed or revised where evidence establishes that there is CUE 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 CUE except for those decisions which have been appealed to and decided by a court of competent jurisdiction and decisions on issues which have subsequently been decided by such a court. 38 C.F.R. § 20.1400. The motion to revise a prior final Board decision 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). 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. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 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. The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (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 that 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. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). 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). Analysis At the outset, the Board finds that the appellant’s motion to revise the Board’s March 2019 decision satisfies the procedural requirements for a CUE motion set forth at 38 C.F.R. §§ 20.1404(a) and 20.1404(b). However, after reviewing his arguments, the March 2019 decision, and the evidence of record at the time of that decision, the Board cannot find that that decision contains an unmistakable error of fact or law that resulted in a manifestly different outcome. As such, the Board denies the October 2019 motion to revise that decision on the basis of CUE. The crux of the October 2019 CUE motion is the assertion that the Board erred in its March 2019 decision by failing to consider and apply the provisions of 38 C.F.R. § 3.156(b). Had it done so, the motion contends, then the Board would have clearly and unmistakably determined that the prior rating decision that denied the Veteran’s earlier claim for increased evaluations for his service-connected disabilities in April 2008 was not final, that the prior claim for an increase would remain pending, and that the Veteran satisfied the criteria for a TDIU dating back to the prior claim for an increased evaluation. The Board does not agree. The October 2019 motion appears to correctly set forth the history of the Veteran’s prior claim for an increased rating that was adjudicated in April 2008. As the motion suggests, the record as it existed at the time of the March 2019 Board decision included an April 23, 2008, rating decision of a VA Regional Office (RO) that had denied an increase in evaluation for the Veteran’s service-connected degenerative disc disease, lumbosacral strain, bronchial asthma, gastroesophageal reflux disease (GERD), and Morton’s neuroma of the left foot. The October 2019 motion also correctly states that the Veteran was notified of this decision on April 28, 2008. The motion errs, however, when it incorrectly states that new and material evidence had been received by the RO in the year that followed the Veteran’s notification of that decision. At the time of the March 2019 Board decision, the relevant law had different procedures for cases that had been considered in the legacy appeal system and those adjudicated under the provisions of the Appeals Modernization Act (AMA). For claims such as the Veteran’s, which had been decided prior to the February 2019 effective date of the AMA, the legacy rules continued to apply. Under that system, decisions of the agency of original jurisdiction or the Board that are not appealed in the prescribed time period are final. See, e.g., 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2008). To appeal a decision by an agency of original jurisdiction, such as the April 2008 denial of the Veteran’s claim for an increased rating, a claimant had one year from the date of the notification of the decision to submit a notice of disagreement. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2008). However, if new and material evidence had been received prior to the expiration of the appeal period (i.e. within one year of notification of the RO’s decision), such evidence will be considered to having been filed in connection with the claim which was pending. 38 C.F.R. § 3.156(b) (2008). “New and material evidence” is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2008). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence received is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The October 2019 motion contends that § 3.156(b) was triggered when the Veteran “used” a VA Form 21-4138 (Statement in Support of Claim) in April 2009. The motion argues that that form informed VA of pertinent medical treatment at a VA medical center, which represented new and material evidence pursuant to § 3.156(b) and rendered the prior claim for an increase rating pending. The record before the Board at the time of the March 2019 decision did include the April 2009 VA Form 21-4138. That form bears the Veteran’s signature, and the box on that standardized form indicating the date that it was signed reads “04/15/2009.” That date is within a year of the Veteran’s notification of the prior denial on April 28, 2008. However, as the October 2019 motion itself makes clear, the provisions of § 3.156(b) apply only when new and material evidence was received prior to the expiration of the appeal period. The October 2019 motion goes on to cite an opinion of the United States Court of Appeals for the Federal Circuit (Federal Circuit), again indicating that when evidence is received during the appeal period, “VA must provide a determination that is directly responsive to the new submission.” Berand v. McDonald 766 F.3d 1402 (Fed. Cir. 2014). The plain reading of both the regulation and the Federal Circuit’s opinion in Berand clarify, however, that such an analysis is only required when the evidence is actually received within that appeal period. Here, the October 2019 motion appears to suggest that because the Veteran appears to have signed the April 2009 VA Form 21-4138 just prior to the expiration of the appeal period, that this signature in and of itself constituted evidence received within the appeal period. The Board does not agree. This document, which was included in the evidence of record at the time of the March 2019 decision, had a clear stamp documenting the date it was received by VA. This stamp clearly showed that VA received the document on April 30, 2009. This date was after the expiration of the appeal period of the prior denial for the Veteran’s increased ratings claims that occurred on April 28, 2009. It cannot, therefore, constitute new and material evidence in and of itself pursuant to § 3.156(b) and render the prior decision not final. The law did not contain any exception for evidence submitted shortly after the expiration of an appeal period. For these reasons, the Board finds that the March 2019 Board decision did not clearly and unmistakably err when it omitted an analysis of whether the April 2009 VA Form 21-4138 represented new and material evidence such that the prior claim for an increased rating remained pending. The October 2019 motion also includes somewhat more vague references to VA medical evidence that was “received by VA within the appeal period following VA’s April 23, 2008 rating decision.” The Board now considers whether the March 2019 decision clearly and unmistakably erred by failing to consider whether any such VA medical records represented new and material evidence that would both render the prior claim pending and would have led to a manifestly different outcome of an earlier effective date for the grant of a TDIU. As explained above, the Board’s current analysis of whether the March 2019 decision contained a clear and unmistakable error may only be conducted in accordance with the law in effect at the time of that decision. Just over a year prior to that March 2019 Board decision, the United States Court of Appeals for Veterans Claims (Court) issued a decision in which it clarified its position regarding when certain VA-created documents may be considered to have been constructively received in the context of an analysis of whether new and material evidence had been “received” pursuant to 38 C.F.R. § 3.156(b). In so doing, the Court held that constructive receipt in the context of determining whether § 3.156(b) was triggered with respect to VA treatment records “requires knowledge by VA adjudicators at the [Veterans Benefits Administration (VBA)] of the existence of those VA treatment records within the one-year appeal period. In determining whether constructive possession has been triggered as to VA treatment records, those records must have been generated by a VA medical facility and VA adjudicators at the VBA must have sufficient knowledge that such records exist.” Turner v. Shulkin, 29 Vet. App. 207, 218 (2018). Here, the claims file before the Board in March 2019 contained no evidence that would suggest that VBA adjudicators would have been aware of the existence of VA treatment records. The Board now reiterates that the statement that VA actually received in this case that reported ongoing treatment at a VA facility was received by VA adjudicators after the expiration of the appeal period. As such, the Board does not find that VA adjudicators clearly and unmistakably were on notice that VA treatment records existed prior to the expiration of the appeal period. It therefore did not have constructive possession of them. As the Board finds that the March 2019 decision did not contain a clear and unmistakable error in analyzing (or failing to analyze) whether new and material evidence had been received in the year following the April 2008 rating decision, the Board finds that the criteria for revision of the March 2019 decision on the basis of CUE have not been met. The motion is denied. In making this determination, the Board recognizes that the holding in Turner has since been considered by the Federal Circuit. In August 2020, it issued a decision which stated that the Court in Turner erroneously stated that a VA adjudicator required actual knowledge of VA treatment records to establish constructive receipt. Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). That decision was not issued until after the March 2019 Board decision that is the subject of the instant motion to revise. The Board can only consider the law as it existed at the time of that decision. At that time, the holding in Turner remained a binding precedential decision of the Court regarding constructive possession of VA medical records and the Board is required to consider whether the March 2019 decision erred committed CUE pursuant to the holding of that case. As explained above, the Board finds that it did not. 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.