Citation Nr: 21042481 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-62 629 DATE: July 13, 2021 ORDER Entitlement to revision of the September 1980 rating decision that denied service connection for a nervous disorder on the basis of clear and unmistakable error (CUE) is denied. Entitlement to an initial compensable rating for hepatitis C is denied. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran's claim of service connection for a nervous disorder was denied in a September 1980 rating decision that became final because he did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The correct facts, as known at the time, were before the VA adjudicators in September 1980. 3. The RO did not give the Veteran 1 year to respond to an order to report for a medical examination before denying his claim under 38 C.F.R. § 3.158(b), but this error was not outcome determinative and the outcome of the claim of entitlement to service connection for a nervous disorder would not have been manifestly different but for the RO's misapplication of the law. 4. The Veteran's hepatitis C has not caused symptoms such as intermittent fatigue, malaise, and anorexia, or any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 5. The Veteran's service-connected psychiatric disorder has not been productive of total social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of the September 1980 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The criteria for an initial compensable rating for hepatitis C have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Codes 7354. 3. The criteria for rating in excess of 70 percent for the service-connected psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the moving party, served on active duty in the United States Army from March 1968 to March 1970, to include service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge. In April 2019, the Board, in pertinent part, denied the Veteran's CUE claim and remanded the issues of entitlement to service connection for hypertension and increased ratings for hepatitis C and PTSD and entitlement to a TDIU. Of note, the TDIU claim stemmed from the Veteran's August 9, 2015, intent to file a claim, and subsequent August 13, 2015, claim for an increased rating for PTSD. In August 2020, the RO issued a rating decision granting service connection for hypertension and a TDIU, effective August 9, 2015. As the TDIU claim stemmed from the August 9, 2015, intent to file a claim, the August 2020 rating decision constitutes a full grant of the hypertension and TDIU claims. Accordingly, these issues are no longer in appellate status. See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). In November 2020, the United States Court of Appeals for Veterans Claims (Court), on the basis of a Memorandum Decision, set aside and remanded the denial of the CUE motion. 1. Entitlement to revision of the September 1980 rating decision that denied service connection for a nervous disorder on the basis of CUE is denied. The Veteran asserts CUE in the September 1980rating decision that denied service connection for a nervous disorder. He contends that the evidence before the adjudicators in September 1980 sufficiently established the criteria for service connection for a psychiatric disorder. See, e.g., Statement (December 18, 2016). A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, the September 1980rating action that denied service connection for a nervous disorder became final as the Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new evidence and material evidence within one year of its promulgation. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. The evidence shows that on October 25, 1979, the VA received the Veteran's claim for service connection claim for a nervous condition. In March 1980 and April 1980, he and others submitted statements describing his symptoms. See Statements (March 24, 1980; April 2, 1980; April 15, 1980). On June 12, 1980, VA received a medical opinion, dated May 29, 1980, indicating that "it seems impossible to conclude other than that [the Veteran's] emotional disability is directly connected and traceable to his service." On July 8, 1980, the Veteran was scheduled to report for a VA examination on July 29, 1980. Correspondence dated July 30, 1980, indicates that the Veteran failed to report to the scheduled VA examination. In a September 1980 rating decision, the RO denied service connection for a nervous condition for failure to report to a scheduled VA examination. See Rating decision (September 1980) ("since you did not report for your scheduled examination, [w]e have no choice but to deny your claim"). On September 25, 2012, the Veteran submitted a claim to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder. This claim is the earliest correspondence from the Veteran after the RO's September 1980 rating decision. Here, the Veteran does not contend and the evidence does not suggest that the correct facts were not before adjudicators at the time of the September 1980 rating decision. Instead, the Veteran asserts that the RO should have awarded service connection based on the evidence of recordarguing that the evidence satisfied the criteria for service connection. The Board does not dispute the presence of such evidence. Critically, however, the September 1980 rating decision turned on the fact that Veteran failed to report to the July 1980 VA examination. The law in effect at the time of the September 1980 rating decision states that "[w]here the veteran fails without adequate reason to respond to an order to report for VA examination within 1 year from the date of request and payments have been discontinued, the claim for such benefits will be considered abandoned." 38 C.F.R. § 3.158(b) (effective 1962). In its November 2020 Memorandum Decision, the Court pointed out that "[a]ny application of 38 C.F.R. § 3.158(b) in September 1980 would have been in error because at that time the Veteran still had 9 months to respond to the order to report for a medical examination." The Board agrees that the September 1980 rating decision erred in applying § 3.158(b) but finds that such error did not manifestly change the outcome of the Veteran's claim. Specifically, but for the RO's error, the Veteran would have had 9 additional months to respond to the order to report for a medical examination. As the Veteran waited more than 30 years to respond to the order to report for a medical examination, the Board cannot find that the RO's error (failing to provide the Veteran with 9 additional months to respond) would have undoubtably changed the outcome of the September 1980 decision. See King, 26 Vet. App. at 441. In sum, the Veteran has not presented evidence of CUE in the RO's September 1980 decision that denied entitlement to service connection for a nervous disorder. 2. Entitlement to an initial compensable rating for hepatitis C is remanded. The Veteran seeks an initial compensable rating for hepatitis C, which is currently rated under 38 C.F.R. § 4.114, Diagnostic code 7354. Under Diagnostic Code 7354, a 10 percent rating is warranted when there is intermittent fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted when there is daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted where there is daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted where there is daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is warranted where there is near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Note 2 under Diagnostic Code 7354 provides that for purposes of evaluating conditions under Diagnostic Code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. See Note 2 following 38 C.F.R. § 4.114. While the Veteran asserted disagreement with the currently assigned rating for hepatitis C, he has not indicated either in statements or with supporting evidence why a higher rating is warranted. The February 2016 VA examination report provides the most comprehensive insight into the severity of the Veteran's hepatitis C. During the examination, the Veteran reported no problems with nausea or fatigue. The examiner noted that medication was not needed to control the Veteran's hepatitis C and that the condition had not resulted in any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) during the preceding 12 months. The examiner concluded that while the Veteran has been diagnosed with hepatitis C, but determined that he does not have any signs or symptoms attributable to chronic or infectious liver diseases. Indeed, while treatment records show that the Veteran has had a history of hepatitis C, neither the records nor the Veteran indicate that the disorder has been symptomatic during the pendency of the appeal, let alone resulted in intermittent fatigue, malaise, and anorexia or incapacitating episodes warranting a higher rating. As the evidence indicates that the Veteran's hepatitis C has not resulted in intermittent fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), a compensable rating is not warranted. 3. Entitlement to a rating in excess of 70 percent for PTSD is denied. The issue of entitlement to an Increase rating for PTSD it was last before the Board in April 2019, at which time it granted a minimum 70 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board remanded the issue of entitlement to a 100 percent rating for PTSD to obtain outstanding records from the Social Security Administration (SSA). Upon remand VA obtained the outstanding SSA records. Accordingly, the issue now before the Board is whether a 100 percent rating is warranted. Under 38 C.F.R. § 4.126(a), a mental disorder shall be rated "based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." 38 C.F.R. § 4.126(a). Under Diagnostic Code 9411, a 70 percent rating is warranted for is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted if evidence shows total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). In this case, the evidence shows that the Veteran's service-connected psychiatric disorder results in social and occupational impairment in most areas due to signs and symptoms such as difficulty understanding complex commands, difficulty making decisions, a tendency to isolate, memory impairment, disturbances in motivation and mood, irritability, difficulty establishing and maintaining relationship, and suicidal ideation. See Statements (March 2, 2016; November 21, 2015); VA examinations (November 2015; July 2013). Critically, however, the evidence shows that the Veteran's service-connected psychiatric disorder has not been productive of total social impairment. As a 100 percent rating for a psychiatric disorder requires both total occupational and social impairment, a finding of no total social impairment is dispositive to the claim. With respect to social impairment, the evidence shows the Veteran has maintained relationships with his wife, brother, and daughter throughout the pendency of the appeal. See Statement (November 21, 2015); VA treatment records (April 26, 2019). While the evidence shows that some of these relationships have been strainedparticularly, irritability with the Veteran's wifethe presence of such close, longstanding relationships affirmatively opposes any notion of total social impairment. Indeed, an April 2019 VA treatment record shows that the Veteran was serving as the primary caregiver for his wife after she underwent surgery and records show that the two reside together in the same home. (Continued on the next page) As the evidence shows that the Veteran service-connected psychiatric disorder has not been productive of total social impairment, a 100 percent rating for the service-connected psychiatric disorder is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.