Citation Nr: 25004288 Decision Date: 03/31/25 Archive Date: 03/31/25 DOCKET NO. 24-00 273 DATE: March 31, 2025 ORDER The motion to revise on the basis of clear and unmistakable error (CUE) a July 26, 2016 Board decision to the extent it assigned less than a 100 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder, is denied. FINDING OF FACT The July 26, 2016 Board decision did not have the incorrect facts before it or misapply the law to the extent it assigned less than a 100 percent rating for PTSD with major depressive disorder, where a June 2010 rating decision had granted nonservice-connected disability pension based on a finding of total and permanent disability in part based on symptoms of depressive disorder. CONCLUSION OF LAW The criteria for revising on the ground of CUE, the final, July 26, 2016 Board decision to the extent it assigned less than a 100 percent rating for PTSD with major depressive disorder, have not been met. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404; 38 C.F.R. §§ 3.314, 3.340, 3.341, 3.342, 4.15, 4.16, 4.17, 4.19 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the moving party, served on active duty from June 1968 to December 1970, including service in the Republic of Vietnam from November 1968 to December 1970. This matter is before the Board as an original action on the January 2024 motion of the Veteran in which he alleges CUE in a July 26, 2016 Board decision. Whether there was CUE in a July 26, 2016 Board decision to the extent it less than a 100 percent rating for PTSD with major depressive disorder The July 26, 2016 Board decision denied an increased rating for PTSD with major depressive disorder in excess of 30 percent prior to May 5, 2010, in excess of 70 percent from May 5, 2010, to May 25, 2011, in excess of 50 percent from May 26, 2011, to May 13, 2015, and in excess of 70 percent beginning May 13, 2015. In the January 2024 CUE motion, the Veteran, through his attorney representative, argues that there is CUE in the July 26, 2016 Board decision. He initially points to a June 2010 rating decision granting nonservice-connected disability pension benefits based on depressive disorder, with a subsequent September 2010 VA examination finding that the Veteran had depressive symptoms co-occurring with PTSD, which could not be separated out, such that major depressive disorder was secondary to PTSD. The Veteran next points to an October 2010 rating decision, which rated the Veteran's disability as PTSD with major depressive disorder. On the foundation of these decisions and this evidence, the Veteran contends that all of his psychiatric symptoms must be attributed to service-connected PTSD per Mittleider. As such, the Veteran argues that there was error in the July 26, 2016 Board decision to the extent did not assign a 100 percent rating. He asserts that the Board should have found the Veteran disabled consistent with the finding of entitlement to pension with subsequent VA examiners unable to separate out the symptoms of PTSD from depressive disorder. The Veteran explains that the grant of pension found him totally disabled due to depressive disorder, and this finding became binding, thereby entitling him to a 100 percent rating for PTSD. To this end, the Veteran points to 38 C.F.R. § 3.341, pertaining to total ratings for compensation purposes, and 38 C.F.R. § 3.342, concerning total ratings for pension purposes. Both regulations, he asserts, reference 38 C.F.R. § 3.340, which defined unemployability for both regulations, pension and compensation. The Veteran cites VBA Training Letter 10-04, which, he asserts, addressed this exact fact pattern. According to the Veteran, it directed VA to award a 100 percent rating where an RO had already awarded pension. Because VA had already determined the instant Veteran was unemployable by reason of nonservice-connected depressive disorder, which disability subsequently became service-connected, VA was mandated to award no less than TDIU. He contends that VA could not reach a different decision where it had already found the Veteran disabled due to depressive symptoms. He maintains that it did not matter that the July 26, 2016 Board decision addressed disability compensation whereas the June 2010 rating decision addressed pension. Rather, he asserts, the finding of unemployability was binding, and could not be revised. Hence, the July 26, 2016 Board decision was required to assign a TDIU or 100 percent schedular rating. A. Applicable Law A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final 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 the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE 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. 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. CUE is established when the following conditions are met. First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Finally, the error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time the decision was rendered. Id. at 313-314, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting "manifestly changed the outcome" language in Russell, supra). 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). B. Discussion In this case, as a preliminary matter, the Board finds the July 26, 2016 Board decision final. The Docket Search database on the website of the United States Court of Appeals for Veterans Claims (Court) shows that the Veteran did not appeal the July 26, 2016 Board decision to the Court. Hence, the July 26, 2016 Board decision is subject to collateral attack via the instant CUE motion. See Lang v. Wilkie, 971 F.3d 1348, 1352 (Fed. Cir. 2020). The Board also finds that the Veteran has pled CUE with sufficient particularity. His argument in the CUE motion is sufficient to inform the Board of his contentions. Finally, the Board finds that the Veteran's CUE motion may proceed as to all issues because he has not previously filed a CUE motion for this issue. Accordingly, the matter is appropriate for consideration on the merits. With regard to the merits of the CUE motion, the Board now finds that there was not CUE in the July 26, 2016 Board decision. Essentially, the Veteran contends that, as a matter of law, a finding of unemployability for pension purposes creates a binding finding of unemployability for compensation purposes, which therefore required VA here to grant a 100 percent disability rating, whether under the schedule for rating a disability or under TDIU, once the nonservice-connected depressive symptoms, which supported the award of pension, subsequently becomes service-connected. The Board finds that this is not the case. The Veteran points to no precedential law, regulation, or case directing the outcome he contends is mandated here. He cites Veterans Benefits Administration Training Letter 10-04. That Training Letter pertained to readjudication of Claims for Ischemic Heart Disease (IHD), Parkinsons Disease (PD), Hairy Cell Leukemia (HCL), and other Chronic B-cell Leukemias, and other Diseases under Nehmer. It included an attachment (3) entitled "Nehmer Training Guide." On page 32, this training guide stated, "To further assist field stations, C&P Service subsequently provided informal instruction that it is not necessary to forward such cases to the Director, C&P Service, for consideration of an extra-schedular TDIU award under 38 C.F.R. § 4.16(b) if an extra-schedular pension award has already been established by a duly appointed authority based on the same disability(ies) for which service connection is now in order." (Emphasis in original.) The training guide went on to include a lengthy discussion regarding whether the RO could assign a TDIU rating (i.e., a total rating for compensation purposes) on an extraschedular basis if service connection was granted for a disability under Nehmer without referral to VA's Director, Compensation service. It found that referral was not required. It reasoned, in relevant part, that referral "would serve as an exercise in futility unless a different decision was reached, which would inject issues of questionable ethics, equity, and fairness." It further stated, "reaching a different decision on the same factual record merely because compensation v. pension would result is arguably in excess of the authority provided in 4.16(b) and 3.104(a)." It concluded, "Such a decision constitutes a final and binding agency decision in accordance with 38 C.F.R. § 3.104(a) and cannot be revised on the same factual basis." Contrary to the Veteran's current CUE argument, this training guide did not direct the RO to assign a total disability rating for compensation purposes once a nonservice-connected disability became service-connected (where pension had been based on the nonservice-connected disability). Rather, it simply decided that referral for extraschedular consider was not necessary if assigning a total disability rating for compensation purposes under these circumstances. Moreover, even if this training letter did direct the result the Veteran argues, this VA training guide was not binding on the Board. In the consideration of appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of VA. The Board is not bound by Department manuals, circulars, or similar administrative issues. See 38 C.F.R. § 19.5 (2016); DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). Because this training letter was nonbinding on the Board, there cannot be CUE to the extent the Board did not apply it. The Board finds that the Veteran has not otherwise demonstrated CUE in the July 26, 2016 Board decision. Most broadly, the Veteran's essential contention is that VA's favorable finding of unemployability for pension purposes became the law of the case, such that it was binding on the July 26, 2016 Board. He points to the June 2010 rating decision granting nonservice-connected pension. He contends that this rating decision found the Veteran unemployable by reason of his depressive symptoms. Therefore, his argument goes, the Board was required to grant a 100 percent rating based on those depressive symptoms, once service connection for the depressive disorder was established. His understanding of the June 2010 rating decision is incomplete. The June 2010 rating decision did not find the Veteran unemployable by reason of his depressive symptomatology alone. It explained that the Veteran "was 61 years old," he had "a level of education reported as 1 year of college," and he "last worked in June 2008 as a home maintenance worker." The rating decision then found, "The evidence shows that you are disabled due to your disability(ies) of depressive disorder." It concluded that, when "considering the level of disability and other factors, such as your age, education and occupational background, extraschedular entitlement to nonservice-connected pension is granted." (Emphasis added.) The June 2010 rating decision did not reach the favorable finding of unemployability based on service-connected depressive symptoms alone. Rather, it based the finding of unemployability on multiple factors, including the Veteran's age, his education level and work history, and his depressive symptoms. This did not create a favorable finding that the Veteran was unemployable by reason on of depressive symptoms alone. No such finding became binding on all later VA decisions, including the July 26, 2016 Board decision. The July 26, 2016 Board decision based its decision on the service-connected PTSD and depressive symptomatology alone. It did not consider the related factors such as age. The earlier decision had no bearing on the issue decided in the July 26, 2016 Board decision. They were factually and legally distinct. The Veteran correspondingly argues that the July 26, 2016 Board decision misapplied the law regarding finds of total disability based on unemployability. He contends that 38 C.F.R. § 3.341 and § 3.342 both point to 38 C.F.R. § 3.340, thereby incorporating the same basic unemployability elements regardless of whether the issue was entitlement to compensation or pension. The Board now finds that the Veteran has not established CUE on this basis. Section 3.340 establishes the generally applicable criteria for total and permanent ratings and unemployability. However, the provisions of § 3.341 and § 3.342 go on to add different criteria for awarding total disability ratings depending on whether the issue was compensation or pension. Most notably, § 3.341 stated that employability must be shown "without regard to advancing age." Section 3.342, by comparison, allowed for consideration of age as a factor. In fact, under 38 C.F.R. § 3.314, a finding of permanent and total disability was to be presumed where a veteran had attained age 65. 38 C.F.R. § 3.314(b)(2) (2016). Section 4.17 also made clear that age may be considered for purposes of establishing pension, whereas § 4.19 explicitly prohibited the consideration of age in service-connected compensation claims as a basis for a total disability rating. Relatedly, the Veteran does not account for 38 C.F.R. § 4.15, which details the specific requirements for total disability ratings for compensation purposes. Those requirements are not common to 38 C.F.R. § 3.342. Thus, contrary to the Veteran's CUE argument, a finding of unemployability under § 3.340 for pension purposes did not, as a matter of law, establishing a binding finding of unemployability for compensation purposes. Rather, § 3.340 established the baseline criteria for finding unemployability. To then assign a total rating, the regulations set forth additional criteria, which were separate and distinct from each other, depending on whether the claim was one for compensation or pension. In fact, section 3.340 made this distinction explicitly. It directed that total ratings are authorized "where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met." 38 C.F.R. § 3.340(a)(2). Thus, the provisions of § 3.340 made clear that separate eligibility requirements must be met before a total disability rating may be assigned based on unemployability depending on whether the claim was one for pension or compensation. Nowhere did § 3.340 direct VA to mechanically assign a total disability rating under the rating schedule once a nonservice-connected disability became service-connected. Finally, the Veteran's CUE motion does not account for 38 C.F.R. § 3.104. It directed at the time of the July 26, 2016 Board decision that a decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of VA as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. 38 C.F.R. § 3.104(a) (2016). Here, the finding of permanent and total disability in the June 2010 rating decision was based on the multiple factors, as shown. Certainly, the July 26, 2016 Board decision could not have overturned the finding as to eligibility for pension, as decided in the June 2010 rating decision. In other words, the July 26, 2016 Board decision could not have found that the Veteran was not unemployable as of June 2010 based on his age, education and occupational background, and depressive symptoms. However, that was not the decision of the July 26, 2016 Board. The July 26, 2016 Board found that the Veteran was not entitled to a 100 percent rating (or TDIU) under the rating schedule based solely on symptoms of PTSD and depressive disorder based on the evidence of record during the period of appellate review before it. The Board did not, and could not, account for his age. The evidence of record by the time of the July 26, 2016 Board decision was different from the veteran considered in the June 2010 rating decision. Stated differently, the law and facts decided in the June 2010 rating decision were different from the law and facts decided in the July 26, 2016 Board decision. Thus, as a matter of both fact and law, the Board now finds that the June 2010 rating decision did not establish a binding, favorable finding of unemployability by reason of depressive disorder. The July 26, 2016 Board decision was not bound in its decision as to any finding in the June 2010 rating decision to this extent. The two issues decided in those decisions were separate and distinct. The July 26, 2016 Board decision did not have to mechanically assign a 100 percent rating based on the symptoms of depressive disorder where the June 2010 rating decision had granted pension based, in part, on symptoms of depressive disorder. For these reasons, the Board finds that it is not clear that the correct facts, as known at the time, were not before the July 26, 2016 Board, or that the statutory and regulatory provisions extant at the time were incorrectly applied. Consequently, the Veteran's arguments cannot sustain a finding that the July 26, 2016 Board decision, where it did not assign a total rating for PTSD with depressive disorder, constitutes CUE. Accordingly, the motion to revise the decision is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.