Citation Nr: 22038892 Decision Date: 07/07/22 Archive Date: 07/07/22 DOCKET NO. 17-60 403 DATE: July 7, 2022 ORDER 1. Entitlement to an effective date prior to January 30, 2010, for the award of service connection for an acquired psychiatric disorder, on the grounds of a clear and unmistakable error (CUE) is denied. 2. Entitlement to a 100 percent initial rating for an acquired psychiatric disorder effective January 30, 2010, is granted. FINDINGS OF FACT 1. The evidence fails to show that the Veteran applied for service connection for an acquired psychiatric disorder prior to January 30, 2010. 2. The more probative evidence indicates that the Veteran's acquired psychiatric disorder renders him totally impaired, both occupationally and socially for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for CUE with regard to the March 2015 rating decision have not been met. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105. 2. The criteria for a 100 percent initial rating for the Veteran's acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to September 1975. These matters are before the Board of Veterans' Appeals (Board) on his appeal from the RO's August 2014 rating decision and the November 2017 SOC. Given that the Veteran's challenges and the RO's decisions have been affected by the parties' substantial confusion (which, regretfully, also affected the Board's prior decision), it appears warranted to state the underlying facts and procedural developments in substantial detail. On January 30, 2010, the Veteran filed a claim for service connection for his acquired psychiatric disorder. The claim was denied in the RO's August 2010 rating decision. In January 2011, the Veteran requested a reconsideration of the RO's decision. In August 2014, he was provided with a VA psychiatric examination. Later in August 2014, the RO issued a rating decision granting the Veteran service connection for his acquired psychiatric disorder. Moreover, as it is typically done in rating decisions granting service connection for veterans' disabilities, the RO's August 2014 rating decision contained two distinct and different findings. On the one hand, the August 2014 rating decision stated that the award of service connection was effective January 30, 2010, i.e., the date of the Veteran's filing of his claim. On the other hand, the August 2014 rating decision assigned a 70 percent initial rating for the Veteran's acquired psychiatric disorder. The RO clarified that the 70 percent rating was based on an August 2014 VA examiner's report. Notably, the August 2014 rating decision did not contain any analysis of the Veteran's VA treatment records associated with the claims file as of the date of the issuance of the August 2014 rating decision, even though the "Evidence" section of the decision included, in its list, some but not all of the Veteran's relevant VA medical treatment records that had been associated with his claims file. Among evidence omitted from the RO's August 2014 review was a February 18, 2014, opinion by the Veteran's treating medical practitioner, Dr. A.S., a Deputy Chief of Psychiatry of the VA Medical Center where the Veteran had been treated. In fact, the opinions rendered by Dr. A.S. warrant a particularly detailed discussion since, prior to the issuance of the RO's August 2014 rating decision, Dr. A.S. issued two opinions, one on December 4, 2012 (docketed on January 15, 2013), and another on February 18, 2014. However, only Dr. A.S.' December 4, 2012, opinion was listed in the "Evidence" section of the RO's August 2014 rating decision, which indicates that the RO failed to acknowledge the February 18, 2014, opinion. Further, while, as noted supra, the December 4, 2012, opinion was listed in the "Evidence" section of the RO's August 2014 rating decision, this opinion was left unaddressed in the "Reason for Decision" section of the rating decision. Therefore, the Board clarifies that, in his December 4, 2012, opinion, Dr. A.S. listed the Veteran's many psychiatric symptoms, one of the least severe of which was the Veteran's "irritability," and recorded, albeit without extensive elaborations, the bases for the Veteran's two terminations of employment ("fired . . . because he threatened to contact newspapers about fraud, and [then] fired . . . because he had an enemy in the [U]nion"). Further, Dr. A.S.' December 2012 opinion ended with his statement, "I have concluded that [the Veteran's acquired psychiatric disorder] now produces total occupational and social impairment." In his February 2014 opinion that escaped the RO's attention, Dr. A.S. had noted that, in addition to the Veteran's previously existing delusions, the Veteran was also experiencing hallucinations. Then, upon listing the Veteran's numerous symptoms, Dr. A.S. restated that, "[c]learly, he remains completely unable to work." Hence, read jointly, Dr. A.S.' opinions demonstrated his medical finding that the Veteran had been totally disabled by his acquired psychiatric disorder since, at the very least, February 2014, and potentially many months or even years prior. However, the RO relied exclusively on the August 2014 VA examiner's report, which indicated that, in August 2014, the Veteran experienced persistent delusions, difficulty in adapting to work, inability to establish and maintain effective relationships, difficulty in adapting to a worklike setting, difficulty in adapting to stressful circumstances, occupational and social impairment (with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood), difficulty in establishing and maintaining effective work and social relationships, chronic sleep impairment, anxiety, suspiciousness, and depressed mood. The August 2014 VA examiner did not record that the Veteran experienced hallucinations in addition to delusions or the Veteran's irritability. Based solely on the symptoms identified by the VA examiner, the RO evaluated the Veteran's acquired psychiatric disorder at 70 percent. For reasons not immediately apparent to the Board, the RO did not explain why Dr. A.S.' repeated medical findings that the Veteran experienced irritability and hallucinations, or that he was totally disabled by his acquired psychiatric disorder, were left unaddressed. In other words, while the Board acknowledges that Dr. A.S. could not usurp the RO's authority to assign an appropriate rating for the Veteran's acquired psychiatric disorder, it was a prejudicial error on the part of the RO to omit addressing Dr. A.S.' medical opinion as to the overall effect of the Veteran's acquired psychiatric disorder, including inability to operate in a work-like setting. Two days after the issuance of the RO's August 2014 rating decision, the RO associated the Veteran's additional VA medical treatment records with his claims file. These additional records demonstrated that, in March 2014, Dr. A.S. referred the Veteran for a Dynamic Deconstructive Psychotherapy (DDTP) consultation. The DDTP consultant recorded the Veteran's "persistent auditory hallucinations and paranoid ideas" and the Veteran's reports of "act[ing] violently 'a few times' when he was feeling threatened or 'belittled.'" In addition, the consultant noted that the Veteran was experiencing "impulsive" judgment and had "poor memory." Correspondingly, this additional evidence not only verified Dr. A.S.'s finding that the Veteran had experienced hallucinations, but also provided new information about the Veteran's three other symptoms, i.e., poor memory, violence, and inability to control his impulses. Then, on November 5, 2014, i.e., three months after the issuance of the RO's August 2014 rating decision, the RO associated another of the Veteran's medical treatment records generated by Dr. A.S. This record was produced on October 10, 2014, and reflected Dr. A.S.' observation that he had been treating the Veteran's acquired psychiatric disorder since June 2010 and, by October 2014, had "seen," i.e., had examined the Veteran periodically 46 times. Dr. A.S.'s October 10, 2014, opinion described the Veteran's additional behavioral patterns, stating that he rarely discusses the surveillance [that he believed he is subjected to but,] when he does, he peers around the room for listening devices[] and lowers his voice, as his eyes well up with tears. . . . He spends much of the day peering out the windows of his home at what he believes are government agents watching him from unmarked cars, [while] at other times, he sits in his backyard, listening to the voices of agents hiding behind the fence and whispering about him [or] shouts back at them. Dr. A.S. once again stated that, in his medical opinion, the Veteran's acquired psychiatric disorder produced his "total occupational and social impairment." However, the RO has never addressed the issue of whether the additional evidence (in the form of the DDTP consultant's findings associated with the claims file two days after the issuance of the August 2014 rating decision or Dr. A.S.'s October 10, 2014, record associated with the claims file three months after the issuance of the August 2014 rating decision) amounted to new and material evidence relevant to the 70 percent initial rating assigned by the RO in its August 2014 rating decision. New evidence means evidence not previously submitted to VA. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Here, the Board acknowledges that the December 4, 2012, opinion rendered by Dr. A.S. (and acknowledged by the RO) and Dr. A.S.' February 18, 2014, opinion (ignored by the RO) were similar, in their gist and scope to the additional evidence. However, the subtle difference between the evidence associated with the claims file before the issuance of the August 2014 rating decision and the additional evidence was critical for the purposes of determining whether the Veteran's symptoms more closely approximated the criteria associated with a 70 or a 100 percent rating. Accordingly, the Board finds that the additional evidence associated with the claims file within one year of the August 2014 rating decision qualified as new and material. Therefore, the portion of the August 2014 rating decision that assigned a 70 percent initial rating for the Veteran's acquired psychiatric disorder did not become final: not only due to the RO's failure to adjudicate this aspect, see Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014), but also in light of the content of the additional evidence, see Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). In February 2015, the Veteran filed a Statement in Support of Claim alleging a CUE in the portion of the RO's August 2014 rating decision determining that his award of service connection was effective January 30, 2010. (Notably, the February 2015 Statement in Support of Claim was wholly silent as to any challenges to the initial 70 percent rating assigned for the Veteran's psychiatric disorder in the August 2014 rating decision, which was consistent with the portion of the August 2014 rating decision that assigned a 70 percent initial rating being in the "pending" status.) While the Veteran did not elaborate on the basis of his CUE challenge, the Veteran stated his opinion that the award should have been effective the date following the date of his separation from service. (The precise rationale of the Veteran's election to allege a CUE is not immediately apparent to the Board since the August 2014 rating decision was issued only six months prior to his filing of the February 2015 Statement in Support of Claim.) In March 2015, the RO issued a rating decision denying the Veteran's claim for an EED as to the date of the award of service connection for his acquired psychiatric disorder. Correctly recognizing that the August 2014 rating decision had not become final by the time when the Veteran filed his February 2015 Statement in Support of Claim, the RO's March 2015 rating decision did not apply the heightened burden of proof associated with CUE claims. (However, no statement in the RO's March 2015 rating decision addressed the additional medical evidence associated with the Veteran's claims file after the issuance of the August 2014 rating decision, i.e., the DDTP consultant's and Dr. A.S.' opinions.) More than a year passed by, rendering the March 2015 rating decision final. On April 26, 2016, the Veteran filed a VA Form 21-526EZ raising two claims. One claim reiterated, once again, his CUE challenges (this time, correctly since, by that time, the March 2015 rating decision had already become final). The other claim read, "Increased Disabilities: [an acquired psychiatric disorder]." Because the Veteran accompanied his VA Form 21-526EZ with Dr. A.S.' October 10, 2014, opinion described supra, the Veteran's filing made it sufficiently clear that he was seeking the RO's readjudication of his initial 70 percent rating in light of the DDTP consultant's and Dr. A.S.'s opinions associated with the claims file within a year from the date of the issuance of the RO's August 2014 rating decision. However, the Veteran's election to use the phrase "Increased Disabilities" confused the RO. Therefore, in September 2016, the RO issued a rating decision de facto granting the Veteran's claims for an increased non-initial rating, albeit for reasons not immediately apparent to the Board paraphrasing this award in terms of a grant of service connection for his acquired psychiatric disorder: as if such a grant had not been already previously awarded in the RO's August 2014 rating decision. Accordingly, it is not surprising that while evaluating the Veteran's acquired psychiatric disorder as totally disabling the RO, being seemingly confused by its own incorrect phrasing of the grant, awarded the de facto increased non-initial rating effective the date of the Veteran's filing of his April 26, 2016, VA Form 21 526EZ. The increased rating was awarded based on the report produced by a VA examiner who conducted the Veteran's August 2016 VA psychiatric examination (i.e., a VA examiner different from the VA examiner who had conducted the Veteran's August 2014 examination). The August 2016 VA examiner found that the Veteran experienced delusions, difficulty in adapting to work, difficulty in adapting to a worklike setting, difficulty in adapting to stressful circumstances, occupational and social impairment (with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood), difficulty in establishing and maintaining relationships, chronic sleep impairment, anxiety, suspiciousness, depressed mood, unprovoked irritability with periods of violence, disturbances of motivation and mood, impaired judgment, memory loss, and hallucinations. Hence, the main difference between the symptoms recorded by the August 2014 and August 2016 VA examiners was limited to the Veteran's memory loss, irritability with periods of violence, impaired impulse control, and hallucinations that the RO relied upon for the purposes of a 100 percent rating. (The Board notes, in passing, that since both the 70 and the 100 percent ratings were based on the Veteran's occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood the mere inclusion of his impaired judgment and impaired thinking in the symptoms underlying his 100 percent rating (but omission of these symptoms from the evaluation underlying a 70 percent rating) was not critical given that the 70 percent rating was based on the Veteran's outright "inability" to establish and maintain relationships, while the 100 percent rating was based on his mere "difficulty" in establishing and maintaining relationships, thus de facto merging the standards. Simply put, the findings of the August 2016 VA examiner were substantively indistinguishable from the sum of: (a) the findings rendered by the August 2014 VA examiner; and (b) the evidence associated with the claims file within a year of the August 2014 rating decision. Thus, the effect of the September 2016 rating decision was an implied denial of the Veteran's claim for an initial rating for his acquired psychiatric disorder, albeit the implied denial was stripped of any evidentiary analysis related to the period from January 30, 2010, to April 25, 2016. Moreover, the September 2016 rating decision did not address the Veteran's CUE claim with regard to the effective date of the award of service connection for this disability: as if his CUE claim had never been raised. Therefore, in September 2017, the Veteran filed an NOD raising two claims. One claim reiterated his CUE challenges as to the date of the award of service connection for his acquired psychiatric disorder, thus challenging the final March 2015 rating decision. The other claim challenged the April 26, 2016, effective date of his 100 percent increased rating, hence challenging the RO's denial of a higher initial rating due to the RO's failure to readjudicate the relevant portion of the August 2014 rating decision that remained pending due to the receipt of new and material evidence. However, since both claims were raised and implicitly denied (by silence) in the RO's September 2016 rating decision, the Board finds that the Veteran's September 2017 NOD was timely filed. In November 2017, the RO issued the Veteran SOC adjudicating his CUE claim (by stating that "[e]ntitlement to an [EED] (earlier than January 30, 2010) [for] service connection for [an acquired psychiatric disorder was] denied"), albeit without applying the heightened burden of proof associated with CUE claims. In other words, the RO found that even under a burden of proof markedly less exacting than that applicable to CUE claims the Veteran still failed to establish that he was entitled to an effective date as the date following the date of his discharge for the award of service connection. Accordingly, the Board finds that the November 2017 SOC conclusively denied the Veteran's CUE claim, thus ripening it for the Board's adjudication. However, unfortunately, the RO conflated the Veteran's CUE claim with his claim for an initial rating in excess of 70 percent by stating, that "[e]ntitlement to an earlier effective date (earlier than January 30, 2010) [for] service connection for [an acquired psychiatric disorder] currently evaluated a[s] 100 percent disabling" was denied. In other words, the RO inadvertently created a single claim different from either of the Veteran's claims. Later in November 2017, the Veteran filed a Substantive Appeal and requested a Board hearing. In February 2021, the Veteran testified at his virtual Board hearing held by the undersigned VLJ. During the hearing, the Veteran's VSO representative stated: Initially, we wish to amend the Veteran's appeal to read the earlier effective date back to January 30th of 2010. Initially, [the Veteran] wanted to go back to 1975, but after he and I discussed the issue, he understood that the VA would not grant an earlier effective date back that far because he did not file within the year timeframe. Hence, it appears that the VSO representative correctly explained to the Veteran that in order to have an award of service connection for a disability effective the date following the date of the Veteran's discharge, the Veteran had to file his claim for service connection for the Veteran's acquired psychiatric disorder within one year from the date of discharge. However, the Veteran continued testifying, extensively, as to his CUE claim, offering a slew of other, different effective dates detailed infra. Thus, while the Board acknowledges the Veteran's representative's attempt to withdraw the Veteran's CUE claim, the Board finds the Veteran's Board hearing testimony was facially inconsistent with his explicit and unambiguous desire to withdraw his CUE claim with a full understanding of the consequences of such an action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, the Board finds that the Veteran's CUE claim as to the effective date of service connection for his acquired psychiatric disorder is still pending and requires adjudication. In addition, independently from his aforesaid CUE claim, the Veteran stressed that he was of opinion that he should have been entitled to a 100 percent initial rating for his acquired psychiatric disorder in light of him and his VSO representative "noticing" that his psychiatric symptoms "were the same in 2010 as they [were on the date of his Board hearing testimony]." Because the Veteran is represented by a VSO, the Board liberally construes the Veteran's assertion, see Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) (clarifying that a claimant represented by a VSO is entitled to the same lenient construction as a pro se litigant), and deems the Veteran's assertion as opining that his symptoms were substantively identical throughout the entire period of service connection for the Veteran's acquired psychiatric disorder, and thus he was entitled to a 100 percent initial rating. In July 2021, the Board issued a decision. At a closer look at the record, the Board acknowledges that the scope and number of the Veteran's challenges that actually were raised differed from the claim identified by the Board, since the Board used the RO's unduly conflated formulation that the Veteran was seeking "an effective date prior to January 30, 2010, for the award of a 100 percent rating" for his acquired psychiatric disorder. Accordingly, the scope and number of the Veteran's challenges are corrected in the "Order" section of the instant Board decision. In addition, the Board acknowledges that, in its July 2021 decision, the Board erroneously stated that the Board was without jurisdiction to adjudicate the Veteran's CUE claim since it had not been adjudicated by the RO in the first instance. The Board, therefore, clarifies that the CUE claim was merely not adjudicated by the RO under the heightened burden of proof applicable to CUE claims but, otherwise, had been adjudicated twice, first in the March 2015 rating decision and then in the November 2017 SOC. Accordingly, the Board has had appellate jurisdiction over both of the Veteran's claims ab initio. In August 2021, the RO issued a Supplemental SOC (SSOC) reiterating the RO's prior errors, i.e., unduly conflating the Veteran's claim for a higher initial rating with his CUE claim, denying the CUE claim without employing the standard of review applicable to CUE claims, and omitting to address the Veteran's claim for a higher initial rating for his acquired psychiatric disorder. Accordingly, in sync with the Board's reading of the RO's November 2017 SOC, the Board also reads the August 2021 SSOC as implicitly denying the Veteran's claim for a higher initial rating for his acquired psychiatric disorder and denying the Veteran's CUE claim under a markedly more lenient standard of review. The Board first addresses the Veteran's CUE claim. During his Board hearing, the Veteran testified as follows: I went to San Diego . . . around 2006 or [20]07 because a friend of mine took me [there since the friend] was helping [other v]eterans. And we filed [an unspecified] claim there . . . . I have been treated for my [psychiatric] condition back in [19]75. . . . I filed in Oakland. I filed several times, [in 19]75 and [in 19]76, and I was told I was not entitled to any [VA] benefits. . . . I'm getting confused. Anyway, I filed there in Oakland, and when they checked and said we don't have [any] record, I said but you told me I didn't have benefits, I was[] entitled to none. And I said[,] well, what about the service-connected benefits? And the lady said no you're not entitled to any benefits . . . . Admittedly, the Veteran's recollections are hard to follow, which is understandable, given that his acquired psychiatric disorder manifested by, inter alia, poor memory. However, the Board gathers that the Veteran, who resides in central California, has had an impression that, while visiting either Southern or Northern California (or both), he filed certain claims with VA, and he believes that the mere fact that the claims were denied shows that he sought service connection for his acquired psychiatric disorder prior to January 10, 2010. Correspondingly, before addressing the standard of review applicable to CUE claims, the Board briefly reviews the claims file for any record of filings that might have underlay his impression. In November 1975, i.e., two months after his discharge, the Veteran filed a claim for VA's education assistance. That claim was awarded in December 1975. However, in May 1976, the assistance was retroactively terminated based on the Veteran's termination of his education. In June 1977, the Veteran filed a claim for service connection for chronic prostatitis. In April 1978, this claim was granted but the Veteran's condition was initially rated as noncompensable. In April 1978, he filed new claims for service connection for his eye-, stomach-, and lower-back conditions. In July 1978, these claims were denied. The next entry in the record, dated November 13, 1996, i.e., more than 18 years later, addressed the Veteran's wrist condition. Therefore, while it is true that the Veteran's filed many claims for service connection for various disabilities shortly after his discharge from service, and he had these claims either denied or granted without being entitled to monetary compensation, none of these claims involved his acquired psychiatric disorder. Almost six years later, in September 2002, the Veteran's medical treatment records generated by his private treating medical practitioners were associated with the claims file. However, these filings were wholly unrelated to any claim for service connection for any disability; rather, the filings were executed in relation to the Veteran's worker's compensation claim. One year later, i.e., in September 2003, the Veteran obtained a VSO representation and filed additional medical treatment records generated by his private treating medical practitioners who reflected on his various disabilities, to include his acquired psychiatric disorder. However, later in September 2003, the Veteran filed a claim for a nonservice-connected VA pension based on his total unemployability due to the combined effect of his disabilities, to include the Veteran's acquired psychiatric disorder. Moreover, in October 2003, the Veteran filed a Statement in Support of Claim stressing that he was seeking only a nonservice-connected VA pension, i.e., a VA's financial need-based benefits unrelated to whether the Veteran's disabilities were or were not service connected. Later in October 2003, the RO awarded the Veteran a nonservice-connected VA pension. Four years later, i.e., in October 2007, the RO retroactively terminated his pension because the Veteran had begun receiving SSA benefits, and the Veteran's combined family income had rendered him ineligible. During 2008, the Veteran was extensively litigating the overpayment arising from this retroactive termination of his VA pension, and the Veteran's claim for a waiver of his overpayment debt (which was granted). Therefore, while the Veteran correctly recalls that he applied and was denied service connection shortly after his discharge from service, these litigations were unrelated to his acquired psychiatric disorder. Moreover, while he correctly recalls that, from 2003 to 2008, the Veteran was litigating matters related to, inter alia, his acquired psychiatric disorder, these litigations were related to the Veteran's VA pension and the overpayment arising from his simultaneous receipts of both the pension and the Veteran's SSA benefits. In sum, the Board's thorough review of the file located only the claim for service connection filed on January 30, 2010: this claim was filed in the form of an informal application framed as a Statement in Support of Claim and reading: "prostatitis, depressive disorder secondary [sic], organic [sic] stomach disease, bilateral hearing loss, bilateral [sic] tinnitus, cervical spine injury, conju[n]ctivitis." With these facts in mind, the Board now turns to the relevant legal standard applicable to the Veteran's CUE claim which stripped of all niceties could be reduced to an assertion that the RO received the Veteran's claim for service connection for his acquired psychiatric disorder sometime between 1975 and 2010 but neither acted on such a claim nor even docketed any records of his filings. Therefore, the Veteran's CUE allegation implicates the presumption of regularity. "The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Romero v. Tran, 33 Vet. App. 252, 254 (2021) (citation omitted). The presumption of regularity reflects Federal tribunals' deference to the other branches of Government and efficiency concerns. See id. However, "it is not a carte blanche [because] the presumption of regularity is rebuttable," and a litigant's or his/her representative's sworn statement that (s)he did mail a submission to VA or did not receive a VA's mailing could rebut the presumption of regularity. See Larkin v. McDonough, No. 20-4772, 2022 U.S. App. Vet. Claims LEXIS 34 (Jan. 13, 2022). True, the holdings of Romero and Larkin might have rendered the presumption a lame duck. That said, the goal of Romero, Larkin and similar decisions was to prompt a thorough review of the record and an adjudication on the merits. Here, the Board has already conducted a thorough review of the record and adjudicates the Veteran's CUE claim on the merits. Thus, not only the letter but also the spirit of these cases is inapplicable to the circumstances at bar, even though the Board acknowledges that the Veteran's Board hearing testimony, submitted under oath, is substantively indistinguishable from an affidavit if assessed based on its nature. (If assessed based on its facts, the Veteran's testimony is qualitatively different from an affidavit since he had never expressly testified that he sought service connection for his acquired psychiatric disorder prior to January 30, 2010, plus he provided a range of "dates" identified only as 1975, 1976, 2006, and 2007.) Moreover, here, even if the Board were to qualify the Veteran's testimony as his rebuttal to the presumption of regularity, the very nature of the Veteran's CUE claim sets forth a standard of review even more exacting than the "clear evidence to the contrary" standard applicable to the rebuttal of the presumption. Generally, a decision of an RO that is not timely appealed becomes final and binding in the absence of CUE. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. To establish a CUE in a prior RO decision, the following requirements must be met: (a) either the facts known at the time of the decision being challenged on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (b) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008). Therefore, a CUE is a very specific and rare kind of error of fact or 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citation omitted). Accordingly, the determination of a CUE must be based on the record and the law that existed at the time of the adjudication that is being challenged. Baldwin v. West, 13 Vet. App. 1 (1999). Here, the record accrued at the time of the RO's issuance of the March 2015 rating decision, i.e., the decision being challenged by the Veteran contained no evidence even suggesting that the Veteran sought service connection for his acquired psychiatric disorder prior to January 30, 2010. A fortiori, the Board is without a basis to find that reasonable minds could not differ as to whether the Veteran filed an application service connection for his acquired psychiatric disorder prior to January 30, 2010. In fact, the Veteran on his own made statements reflecting his uncertainty as to his recollections. Therefore, viewing the Veteran's challenge to the effective date of the award of his service connection for the Veteran's acquired psychiatric disorder through the prism of the CUE standard of review fortification of the presumption of regularity, the Board finds that the Veteran had not met his burden. Accordingly, the Veteran's CUE claim is denied. With that, the Board now turns to the Veteran's claim for a higher initial rating for his acquired psychiatric disorder. At the onset, the Board reiterates its prior observation that, read jointly, the opinion rendered by the August 2014 VA examiner and the DDTP consultant's and Dr. A.S.' opinions reflect the Veteran's symptoms substantively indistinguishable from his symptoms identified by the August 2016 VA examiner. Thus, the Board first focuses on the Veteran's and his VSO representative's allegations the RO's assignment of the initial 70 percent rating for the Veteran's acquired psychiatric disorder was inconsistent with the RO's assignment of a 100 percent "increased" rating effective April 26, 2016. However, the Board is not concerned with consistency of the RO's adjudication. Indeed, had consistency been the decisive factor, it could be argued that the RO erroneously assigned a 100 percent "increased" rating for the Veteran's acquired psychiatric disorder, and the proper rating should have remained at 70 percent. Rather, the Board focuses on the dispositive source: the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all the types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the claimant's favor. See 38 C.F.R. § 4.3. Notably, the symptoms recited in the Rating Schedule for evaluating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The psychiatric disability at issue here is rated under DC 9201 of the General Rating Formula for Mental Disorders. Pursuant to the General Rating Formula for Mental Disorders, a 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as suicidal ideations, obsessional rituals that interfere with routine activities, speech that is intermittently illogical, obscure, or irrelevant, near-continuous feeling of 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 inability to establish and maintain effective relationships. In contrast, a 100 percent disability rating is assigned for a 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 as to time or place, and memory loss for names of close relatives, or for the veteran's own occupation or name. Here during the period on appeal (or thereafter) the Veteran denied suicidal or homicidal ideations, has not experienced spatial disorientation or neglected his personal appearance and hygiene, disorientation as to time or place, and his memory loss did not involve names of close relatives, or for the veteran's own occupation or name. (The Board notes, in passing, that in 2003 the Veteran admitted to homicidal ideation without a plan and was observed neglecting his appearance and hygiene, but these symptoms have been controlled since by his medications.) However, the totality of the Veteran's symptoms experienced during the period on appeal paints a picture that more closely approximates the criteria associated with a 100 percent rating, given the combined effect of the Veteran's symptomatology on his functionality, to include his earning capacity. In light of the foregoing, the Veteran's claim for a higher initial rating for his acquired psychiatric disorder is granted, i.e., his rating for this disability should be 100 percent effective January 30, 2010. In conclusion, the Board takes this opportunity to thank the (Continued on the next page) Veteran for his service. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, Associate 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.