Citation Nr: 22014151 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 10-17 238 DATE: March 11, 2022 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to a disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) for the period prior to July 15, 2008, is remanded. Entitlement to revision of a Department of Veterans Affairs (VA) rating decision on the basis of clear and unmistakable error (CUE) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from March 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) most recently from an April 2016 decision of a VA Regional Office (RO) that determined that a prior RO decision did not contain clear and unmistakable error in assigning the effective date of service connection for PTSD. The Veteran submitted a valid notice of disagreement to that decision later in April 2016 and perfected his appeal to the Board in December 2018. In the interim, a VA RO issued a November 2018 decision that found CUE in the assignment in the effective date for the grant of service connection for PTSD and awarded a new effective date of May 18, 2014. This action does not impact the issue of the Veteran's claim for CUE in a RO decision remained on appeal, and he appeared and testified before the undersigned Veterans Law Judge (VLJ) at a hearing conducted in June 2021. A transcript of the hearing has been included in the claims file. 1. Entitlement to a total disability rating based on individual unemployability for the period prior to July 15, 2008, is remanded. 2. Entitlement to a disability rating in excess of 10 percent for posttraumatic stress disorder for the period from May 18, 2004, to July 15, 2008. In reviewing the file, the Board has discovered that an unresolved prior appeal to the Board has appeared to have been erroneously closed out by a VA RO and remains in appellate status. It also appears that a VA RO also inappropriately failed to recognize a proper notice of disagreement to an even earlier rating decision. Specifically, the record reflects that the Veteran initially was granted service connection for PTSD in a September 2005 rating decision. An initial disability rating of 10 percent was assigned to this disability. Within a year of his notification of that decision, the Veteran's representative submitted a November 2005 notice of disagreement to that decision in which a higher rating was sought. The representative also explained at that time that the Veteran had not been sent for a current VA medical examination and that he should be afforded a new medical examination to assess his level of disability. Pursuant to this notice of disagreement, VA arranged for the Veteran to attend a December 2005 psychiatric examination. After that evaluation, VA issued a December 2005 rating decision that confirmed his 10 percent evaluation for PTSD. In a December 2005 email to the Veteran's representative, a VA employee informed the representative that the examination requested in the November 2005 notice of disagreement had been completed and the existing rating was confirmed. It went on to state that if the Veteran wished to file a notice of disagreement, it must be filed after the December 2005 rating decision that confirmed the 10 percent disability rating. Notwithstanding the actions of the RO in December 2005, the notice of disagreement represented a clear written expression of disagreement with the 10 percent disability rating assigned to PTSD. Upon receipt of the notice of disagreement, the proper action was not to issue a new rating decision but instead issue a statement of the case to allow the Veteran to perfect his appeal to the Board. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). After that December 2005 action, the Veteran again submitted a new claim for an increase in the disability rating for his PTSD as well as for TDIU in July 2008. VA issued a rating decision on the claim in October 2008 that denied entitlement to a TDIU and granted a partial increase ot 30 percent for PTSD. The Veteran again disagreed with the disability rating assigned to his PTSD as well as the denial of a TDIU through his representative in correspondence received in February 2009. Unlike the prior proceeding in 2005, VA properly recognized this correspondence as a notice of disagreement and correctly issued a statement of the case. Although it appears to only have addressed the period since the time of the July 2008 claim, it should have properly noted that the issue of entitlement to an increased initial disability evaluation for PTSD remained in appellate status after the receipt of the November 2005 notice of disagreement. Notwithstanding that error, the Veteran finally was afforded the opportunity to perfect his appeal, and he did so in April 2010. Pursuant to this appeal, the Board remanded the matter in November 2013 for further evidentiary development. In its readjudication of the issues on appeal, VA issued a new rating decision in March 2014 that granted a 70 percent disability rating effective July 16, 2008, which is the date of receipt of the more recent claim for an increased rating, and also assigned a 100 percent rating for PTSD effective December 20, 2013. The rating decision also granted the TDIU effective the date of the July 2008 claim and terminated the TDIU effective the date of the grant of the 100 percent schedular PTSD rating in December 2013. In its rating decision, VA indicated that this decision represented a total grant of disability benefits sought on appeal. However, as explained above, the appeal period stretched back to the initial grant of service connection for PTSD due to the proper submission of the November 2005 rating decision. Accordingly, the Board now finds that remand is required to issue a supplemental statement of the case that readjudicates the issue of entitlement to an initial increased evaluation for PTSD, to include entitlement to a TDIU, for the period prior to July 16, 2008. 3. Entitlement to revision of a VA rating decision on the basis of clear and unmistakable error is remanded. In addition to the increased rating and TDIU issues, the Board also finds that remand is required relating to the Veteran's request to revise a VA rating decision on the basis of CUE. The Veteran's CUE claim arose when he submitted correspondence in December 2015 in which he argued that there was CUE in the effective date assigned to PTSD and that the proper effective date should be August 1972. 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). 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, 43-44 (1993). To establish a valid CUE claim, a claimant must show that "[e]ither the correct facts, as they were known at the time, were not before the adjudicator[,] or the statutory or regulatory provisions extant at the time were incorrectly applied." Luallen v. Brown, 8 Vet. App. 92, 94 (1995) (quoting Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc)). The regulatory provisions governing revision of prior final decisions based on CUE also enumerate specific filing requirements for CUE motions. More specifically, a CUE motion must be in writing, signed by the requesting party or that party's authorized representative, and include the name of the claimant, the applicable VA file number, and the date of the decision to which the request relates. 38 C.F.R. § 3.105(a)(vii)(A). The request must also set forth clearly and specifically the alleged clear and unmistakable error, or errors, of factor or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. 38 C.F.R. § 3.105(a)(vii)(B). Non-specific allegations of failure to follow regulations or failure to give due process, or other general, non-specific allegations, are insufficient to satisfying the filing requirements. Id. Assertions of CUE that fail to satisfy the pleading requirements should be dismissed without prejudice to refiling. Simmons v. Principi, 17 Vet. App. 104, 113-14 (2003). Apparently recognizing that the December 2015 CUE motion regarding the effective date of service connection for PTSD did not contain many specifics regarding the precise error that was being alleged, the adjudicating RO initially informed the Veteran in February 2016 that he would need to provide additional specifics regarding the factual and legal errors that he was contending that VA had committed. Although no response was received, VA proceeded to adjudicate a claim for revision of an RO decision on the basis of CUE and issued the April 2016 rating decision that is on appeal. It is clear from the face of the rating decision that the RO only considered whether there was CUE in the initial rating decision that granted service connection for PTSD. The Veteran disagreed with the denial to revise an RO decision on the basis of CUE in an April 2016 notice of disagreement. There, he provided additional insight into his theory of CUE and argued that he had originally filed a claim in 1981 for depression but was not able to claim PTSD in 1981 because PTSD didn't exist as such at the time. The RO then issued a statement of the case in which it again interpreted the Veteran's arguments as a CUE challenge to the 2005 rating decision that initially granted service connection for PTSD. The statement of the case only addressed the issue of finality in a prior rating decision that denied service connection for PTSD and whether there was any claim or new and material evidence submitted after that claim and before the May 2004 petition to reopen a claim for service connection for PTSD. Nowhere in that discussion was any mention of a 1981 claim. The Veteran perfected his appeal to the Board when he submitted a December 2018 VA Form 9. There, his representative explicitly appeared to challenge a February 1982 rating decision due to disagreements with its interpretation of a medical examination. The representative also submitted a statement in December 2018 that again clarifies that the actual challenge on the basis of CUE relates to the February 1982 rating decision. Unfortunately, the RO has not yet adjudicated this specific theory of CUE. The law is clear that each individual allegation of CUE involves a specific assertion of error in an RO decision and constitutes a distinct claim. Andre v. Principi, 301 F.3d 1354, 1362 (Fed. Cir. 2002). Although not necessarily precise initially, the totality of the arguments presented by the Veteran's representative up until this point make clear that the CUE allegations do not involve the substantive determination in 2005 assigning an effective date. That is, they do not argue that that decision erred in finding a final rating decision was final or that an interim, unaddressed claim remained pending. Rather, the Veteran's arguments go to a substantially earlier denial by a VA RO from 1982. That particular CUE allegation has not yet been addressed by the RO and a remand is required to allow initial adjudication of this distinct CUE theory. Id; See also Jarrell v. Nicholson, 20 Vet. App. 326, 331-332 (2006). In issuing this remand directive, the Board makes no finding regarding the issue of whether there was CUE in the 2005 rating decision that granted service connection for PTSD. It now appears clear from the substantive filings that the Veteran has not yet intended to challenge that decision on the basis of CUE. To adjudicate whether CUE exists in that decision when no specific allegations of CUE in such a decision have been argued could substantially prejudice the Veteran in the future. In that regard, the Board notes once there is a final denial of a CUE motion, the same claim cannot be raised again. See Link v. West, 12 Vet. App. 39, 44 (1998) ("Under the principle of res judicata 'once there is a final decision on the issue of [CUE]... that particular claim of CUE may not be raised again.") (quoting Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc)). The only CUE issue properly before VA at this time are the challenges to the February 1982 rating decision that denied service connection for a psychiatric disorder. To address the issue of whether the 2005 rating decision contains CUE would permanently prevent the Veteran from challenging that decision on the basis of CUE in the future. The matters are REMANDED for the following action: 1. Readjudicate the issue of entitlement to an initial evaluation in excess of 10 percent for PTSD, to include entitlement to a TDIU, for the period prior to July 15, 2008. 2. Adjudicate the Veteran's claim for entitlement to revision of the February 1982 rating decision denying service connection for a psychiatric disorder by promulgating a rating decision. A copy of any rating decision on this claim should be sent to the Veteran and his representative and must be included in the claims file. An appropriate length of time should be allowed for response from the Veteran and/or his representative. This claim should not be returned to the Board unless the Veteran subsequently perfects a timely appeal. M. Donohue 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.