Citation Nr: 21030824 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-22 773A DATE: May 19, 2021 ORDER Due to a clear and unmistakable error (CUE), the June 17, 1986, decision of the Board of Veterans' Appeals (Board) is revised to reflect that the termination of the Veteran's permanent and total disability rating for pension purposes was not proper. FINDINGS OF FACT 1. The Veteran was granted pension benefits based on a determination in March 1977 based on evidence of permanent and total disability, to include due to psychological abnormalities such as argumentative and vindictive behavior, sleep disturbances, auditory and visual hallucinations, and defective insight and judgment. 2. The Veteran attended a VA medical examination in October 1984 at which the Veteran exhibited anxiousness, depression, and nightmares, but did not have homicidal ideation, hallucinations, obsession, delusions, or psychosis. 3. As a result of the October 1984 VA medical examination, a Regional Office (RO) of the Department of Veterans Affairs (VA) determined that the Veteran no longer had a permanent and total disability rating for pension purposes, and the Board affirmed that determination in the June 1986 Board decision. 4. All of the evidence before the Board at the time of the June 1986 decision did not clearly warrant the conclusion that the Veteran had accomplished sustained improvement in his psychological functioning in the ordinary conditions of life. CONCLUSIONS OF LAW 1. The June 1986 board decision clearly and unmistakably erred in failing to consider the applicable VA regulations regarding stabilization of disability evaluations in effect for 5 years or more. 38 U.S.C. § 501(a); 38 C.F.R. § 3.344(a) (1986). 2. Had the Board used the correct legal standard, the result of that decision would have been manifestly different and the termination of a permanent and total disability rating for pension purposes would have been determined to not have been proper. 38 C.F.R. § 3.344(a). 3. The criteria for revision of the June 1986 Board decision on the basis of clear and unmistakable error (CUE) have been met. 38 U.S.C. § 7111; 38 C.F.R. § 20.1403-04. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the moving party, served on active duty from This matter comes before the Board from a July 2015 motion to revise a June 1986 decision of the Board on the basis clear and unmistakable error. The Board denied that motion in an August 2018 decision. The Veteran then appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which issued a September 2020 memorandum decision vacating the August 2018 denial. 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 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 The central question before the Board regarding whether revision of the June 1986 Board decision is warranted is relatively simple: did the Board undebatably err in its failure to consider the provisions of 38 C.F.R. § 3.344(a) in evaluating whether sustained improvement in the Veteran's mental functioning had occurred such that a permanent and total rating for pension purposes was no longer warranted? For the reasons described below, the Board finds that the June 1986 did commit such an error and that, but for that error, the outcome would have been manifestly different. As the Court noted in its September 2020 Memorandum Decision, the Veteran was initially granted pension benefits on the basis of a permanent and total disability rating for pension purposes due, in part, to his psychiatric diagnosis. This benefit was granted in March 1977 while the Veteran was actively hospitalized for his psychiatric symptoms. His pension benefits remained in place for several years until January 1985, when a VA Regional Office proposed to reduce his benefits after the Veteran attended an October 1984 medical examination. After that proposed reduction was effectuated, the Veteran appealed that RO decision and the Board issued the June 1986 decision that is the subject of the current motion for revision. The law in effect at the time of the June 1986 Board decision has not substantially changed with respect to revisions of disability evaluations such as the Veteran's permanent and total rating for pension purposes. For those in effect for 5 years or more, the law required an adjudicator to examine the entire record to obtain an entire case history. 38 C.F.R. § 3.344(a). Moreover, when the rating is of a disease subject to temporary or episodic improvement, such as the Veteran's psychiatric disability, the applicable regulation explicitly holds that a rating will not be reduced "on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated." Id. Here, the Board determined in its August 2018 decision that the June 1986 Board decision failed to apply the provisions of 38 C.F.R. § 3.344. Indeed, a review of the June 1986 decision uncovers no citation to that provision. That decision instead merely phrased the issue as whether the criteria for a total and permanent disability were met and ultimately found that they were not. Although the June 1986 decision referenced the testimony of the Veteran's wife, it is clear from the four corners of that decision that the primary basis for the determination that a total and permanent disability rating was not warranted was the psychiatric examination conducted in October 1984. As this reduction was of a disability of the type subject to episodic improvement mentioned in 38 C.F.R. § 3.344(a) and was based on only one medical examination, that regulation was the appropriate provision to determine whether a revision in the permanent and total disability rating was proper. The August 2018 Board decision agreed with the Veteran's CUE motion that the June 1986 decision erred in failing to apply 38 C.F.R. § 3.344(a), but it nonetheless found that the reduction in the rating was not based solely on the October 1984 psychiatric examination. The August 2018 decision determined that other evidence of improvement existed in the record, to include VA medical records from April through July 1985 that showed much improvement in symptoms of aggression with treatment, despite ongoing anger, irritability, and aggressiveness at home. Implicit in this finding is that the October 1984 examination was not the sole reason for the reduction in the Veteran's permanent and total disability rating. The Court determined that the August 2018 decision provided an inadequate reasons and bases for determining that the June 1986 error in failing to apply the provisions of 38 C.F.R. § 3.344(a) did not result in a manifestly different outcome. In the September 2020 Memorandum Decision, the Court acknowledged that the Board's August 2018 decision cited to evidence other than the October 1984 medical examination in stating that that reliance on a single examination was not used to reduce the rating, to include those 1985 clinical notes. However, the Court determined that the presence of this other medical evidence did not excuse the Board from applying the provisions of 38 C.F.R. § 3.344(a). The Court held that the Board therefore failed to address the proper standard regarding those treatment records. It held further that the proper standard was to determine whether, "all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated." (emphasis in original). The Board now turns to that question of whether all of the evidence of record at the time of the June 1986 Board decision clearly warranted the conclusion that there had been sustained improvement in the Veteran's psychiatric functioning. The Board cannot now say that it did. As the Memorandum Decision makes clear, the Veteran's initial grant of benefits was based in part on the rather dramatic psychological symptoms he was experiencing that were recorded at a January 1977 medical examination. At that time, he had a querulous and plaintive disposition, emotionally charged speech, defective insight and judgment, and disturbed sleep. He also reportedly heard noises and had visions at this time. The examiner found him to have a moderately severe to severe degree of incapacity. These symptoms appeared to have substantially improved by the time of the October 1984 VA medical examination. That examiner reported no evidence of hallucinatory or psychotic processes, and while the Veteran continued to have anxiety and depression, his insight, abstraction, and judgment were felt to be fair. However, as the Court has noted, the Board must determine whether all of the evidence of record distinct from that October 1984 VA medical examination clearly confirmed that the Veteran had experienced a sustained improvement of his psychological functioning. As the August 2018 Board decision made clear, the record did contain VA medical treatment records from mid-1985 in which the Veteran was able to attain some success in managing his symptoms with medication. However, even with that success, those clinical records included ongoing references to his irritability, aggressiveness, and anxiety. While there were no symptoms of visual hallucination at the time of a June 1985 evaluation, he was noted to have persistent images of dead people in his dreams and during the day in a May 1958 clinical note. At that time, he also had poor insight and poor judgment. The Board notes that this evidence represents some potential indicators that the degree of severity of his psychological symptoms had improved by 1985, but observes that they continue to include references to the same types of symptoms that served as the basis of his original grant of a total and permanent disability rating (i.e. aggressiveness, hostility, and hallucinations). The record before the Board in June 1986 also included two letters from employers of the Veteran. Each recounted distinct episodes of brief but fraught attempts by the Veteran to return to his prior employment in an automobile body shop. In one, the Veteran's employer stated that he had to let the Veteran go less than five days after he was hired, after he suspected the Veteran had intentionally trampled a pedestrian while driving and subsequently attacked a fellow employee. In the other, the employer stated that the Veteran lasted only one day after the Veteran reported speaking about ghosts and dead people. Due to fears for the safety of the Veteran and other employees, he was terminated from that position. The Board cannot say that this evidence clearly warrants the conclusion that the Veteran had achieved sustained improvement in his psychological functioning, as the Court held the Board must find in accordance with 38 C.F.R. § 3.344(a). On the contrary, it represents clear evidence that the Veteran remained psychologically erratic and incapable of appropriately functioning in the ordinary conditions of life. Applying these facts to the standard of revision or reversal of a Board decision on the basis of CUE, the Board finds that revision of the June 1986 Board decision is warranted. It is undebatable that that decision erred in failing to apply 38 C.F.R. § 3.344(a). The Board now finds that all of the evidence of record at the time of the June 1986 Board decision did not clearly demonstrate a sustained improvement in the Veteran's psychological functioning. As such, had the Board correctly applied the provisions of 38 C.F.R. § 3.344(a), it would have determined that the termination of the Veteran's permanent and total disability rating for pension purposes was not proper (i.e. a manifestly different outcome). Each of the Damrel elements is therefore satisfied. The June 1986 Board decision is therefore revised to reflect that the termination of the Veteran's permanent and total disability rating for pension purposes was not proper. The CUE motion is granted. 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.