Citation Nr: 22014697 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 10-35 043 DATE: March 14, 2022 ORDER The appeal challenging the reduction of the disability evaluation from 100 percent to 50 percent, effective June 1, 2008, for the service-connected posttraumatic stress disorder (PTSD) disability, to include the reduction of special monthly compensation (SMC) is DISMISSED. FINDINGS OF FACT 1. In November 2020, the Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR) that was filed in October 2020. In so doing, the Court vacated and remanded a December 2019 Board decision on the Veteran's current appeal of the decreased rating for the PTSD disability. 2. In May 2021, the Board issued a decision that addressed the October 2020 JMR. At that time, the Board denied the Veteran's appeal, while addressing the issues identified in the October 2020 JMR. 3. The record does not show that the Veteran appealed the May 2021 decision to the Court; there has been no allegation or finding of clear and unmistakable error in the decision; and the Chairman of the Board has not ordered reconsideration of the decision. CONCLUSIONS OF LAW 1. The May 2021 Board decision upholding the decision denying the Veteran's challenge to the propriety of the reduction of the disability evaluation from 100 percent to 50 percent for PTSD to include reduction of special monthly compensation (SMC) is final. See 38 U.S.C. §§ 7103 (a), 7104; 38 C.F.R. § 20.1100 (a). 2. The criteria for dismissal of an appeal, which challenges the propriety of the reduction of the disability evaluation from 100 percent to 50 percent, effective June 1, 2008, for the service-connected posttraumatic stress disorder (PTSD) disability to include the reduction of SMC have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from November 1962 to December 1972. The appeal challenging the propriety of the reduction of the disability evaluation from 100 percent to 50 percent, effective June 1, 2008, for the service-connected posttraumatic stress disorder (PTSD), to include reduction of SMC, dismissed. The Board has addressed this decreased rating claim on multiple occasions, to include in December 2013, May 2018, December 2019, November 2020, and May 2021. In May 2021, the Board again denied the Veteran's appeal of the reduction initiated by the AOJ, from 100 to 50 percent, for the service-connected PTSD disability, which was made effective June 1, 2008, to include reduction of SMC. The Court of Appeals for Veterans' Claims (Court) has also addressed this claim on multiple occasions, to include July 2019, October 2020, and September 2021. In September 2021, the Court vacated and remanded the Board's November 2020 decision on the Veteran's appeal of the decreased rating for the PTSD disability. The Court relayed that, in November 2020, the Board did not address the October 2020 joint motion for remand (JMR) in the decision on appeal, to include the matters discussed therein. At this time, the Board observes that its May 2021 decision does address the issues raised in the Court's October 2020 JMR. Specifically, the Board's decision addresses the Veteran's reports concerning suicidal ideation, unemployment, and obstructive sleep apnea. The Board's decision also addresses the Veteran's global assessment of function (GAF) scores and the accompanying level of impairment during the claim period. Consequently, at this time, the Board finds that its May 2021 decision substantially complied with the Court's October 2020 JMR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). While the Veteran has filed several appeals to the Court, the record does not reflect that he filed an appeal of the May 2021 denial of his claim. In the absence of clear and unmistakable error, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103 (a), 7104; 38 C.F.R. § 20.1100 (a). The Veteran did not appeal the May 2021 decision to the Court, there has been no allegation or finding of clear and unmistakable error in the May 2021 decision, and the Chairman of the Board has not ordered reconsideration of the May 2021 decision. Therefore, the May 2021 Board decision is final. See 38 U.S.C. §§ 7103 (a), 7104; 38 C.F.R. § 20.1100 (a). The Board notes that, in September 2021 and January 2022, the Veteran and / or his representative presented additional argument in opposition of the Board's May 2021 decision. Claims for clear and unmistakable (CUE) must be raised with specificity as to alleged error and why, unless the error is persuasive on its face, the outcome would be manifestly different but for the error. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997). "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 it 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). "To warrant review by the Board, a claim of [CUE] must be raised with specificity regarding when and how [CUE] occurred." McIntosh v. Brown, 4 Vet. App. 553, 561 (1993). "[S]imply to claim CUE on the basis that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, at 44. "It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger." Fugo, at 44. To the extent that the Veteran has expressed disagreement with the denial of his claim, he has not specifically alleged or identified any CUE in the adjudication of his appeal in May 2021. Accordingly, the Board finds that a motion for CUE has not been filed in this case. The Board's 2021 denial of the claim subsumes the prior denial of the decision on appeal. The May 2021 decision is final. The Veteran's appellate options are to 1) file a motion for reconsideration; 2) file a motion for revision based on CUE in the Board decision; or 3) appeal to the Court. The record does not show that the Veteran has taken any of these actions in response to the final May 2021 decision. Consequently, the Board finds that the evidence of record pervasively supports dismissal of the Veteran's claim at this time. Therefore, the Veteran's appeal challenging the propriety of the reduction of the disability evaluation from 100 percent to 50 percent, effective June 1, 2008, for the service-connected PTSD disability is dismissed. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.