Citation Nr: A25035754 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 220411-234534 DATE: April 17, 2025 ORDER The appeal seeking revision of an October 1976 rating decision that assigned an initial noncompensable, or zero percent, disability rating for posttraumatic encephalopathy on the basis of clear and unmistakable error (CUE) is denied. The appeal seeking an effective date earlier than May 8, 2013, for the 70 percent disability rating for posttraumatic encephalopathy with mood disorder on the basis of equitable relief is denied. FINDINGS OF FACT 1. An October 1976 rating decision, which granted service connection for posttraumatic encephalopathy, assigning an initial noncompensable, or zero percent, disability rating, became final because the Veteran did not submit a timely, valid notice of disagreement (NOD), and new and material evidence was not received within the appeal period nor were new, relevant service records received at any time thereafter. 2. The correct facts, as known at the time, were before the VA adjudicators in October 1976, the statutory and regulatory provisions extant at the time were correctly applied, and there was no undebatable error, the commission of which manifestly changed the outcome of the decision regarding the assignment of an initial noncompensable, or zero percent, disability rating for posttraumatic encephalopathy. 3. The Veteran was already in receipt of an award of service connection for posttraumatic encephalopathy at the time of issuance of VA Policy Letter 21-16-03 in July 2016. CONCLUSIONS OF LAW 1. The criteria for revision of an October 1976 rating decision with regard to the assignment of an initial noncompensable disability rating for posttraumatic encephalopathy on the basis of clear and unmistakable error 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 equitable relief pursuant to the provisions outlined in VA Policy Letter 21-16-03 (July 1, 2016; revised August 10, 2016) have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had active service in the U.S. Marine Corps from April 1971 to August 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); the modernized review system, also known as the Appeals Modernization Act (AMA), applies. With respect to the CUE aspect of this appeal, new evidence cannot be considered in deciding motions seeking revision or reversal of prior final decisions based on CUE, as such CUE motions must be based upon the facts and law that existed at the time of the prior decision. See 38 C.F.R. § 3.105(a)(1)(iii). With regard to the Veteran's request for equitable relief, in the April 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2021 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. The appeal seeking revision of an October 1976 rating decision that assigned an initial noncompensable, or zero percent, disability rating for posttraumatic encephalopathy on the basis of clear and unmistakable error (CUE) is denied. Throughout this appeal, the Veteran has requested an effective date prior to May 8, 2013, for the 70 percent disability rating for posttraumatic encephalopathy with mood disorder on the basis of equitable relief pursuant to VA Policy Letter 21-16-03, discussed in detail below. However, in a February 3, 2021, letter, the AOJ advised the Veteran that, in order for him to challenge the effective date, he would need to assert CUE in the October 1976 rating decision that granted service connection. Accordingly, the Veteran has made some assertions of CUE in the October 1976 rating decision and the appeal was processed as a CUE claim. Thus, the Board will first address the CUE contentions prior to discussion of equitable relief. An October 1976 rating decision granted service connection for posttraumatic encephalopathy, effective from February 19, 1976, assigning an initial noncompensable, or zero percent, disability rating. The Veteran did not file a timely NOD challenging this determination, new and material evidence was not received within one year of the rating decision, nor were new, relevant service records received at any time thereafter. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the October 1976 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 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 benefit-of-the-doubt doctrine is not for application in claims of CUE. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claim. The evidence at the time of the 1976 rating decision included an April 19, 1976, VA examination report signed by Dr. R.L., MD, ENT. The Veteran stated that, during active service, he fell over a balcony, landing on the back of his head. Since then, he reported that his right eye "turns up" most of the time, and that he saw double under certain circumstances, mostly when he tried to focus on closer objects. He also occasionally saw double when driving. Examination revealed pupils equal and regular reaction to light and accommodation. Lateral fields were normal to confrontation, central fields were normal with tangent screen, and convergence was okay. A Maddox rod test showed 12 diopters hyperphoria. Distance vision was 20/15-1. It was noted that when viewing the muscle light with red-green spectacles, he saw two lights, with the red light (right eye) above the green, and that with a 12-diopter prism base up left, he fused the lights. When the left eye was covered, the right eye turned up. The examiner assessed diplopia, noting that it was worse on upper left gaze, and that the Veteran was able to control the double vision by concentrating, but as soon as he relaxed or was diverted, he saw double again. There was also an April 29, 1976, VA examination conducted by Dr. A.G., MD. The examiner noted that the Veteran did not volunteer any complaint other than his eyes ("double vision") at that time. He reported that he was hospitalized during active service for four months after falling off of the balcony. An April 22, 1976, x-ray of the skull was essentially normal. The Veteran denied headaches, vertigo, syncope, seizures, neurological problems, and sensory problems. There was no scar on his scalp and no evidence of skull deformity. Cranial nerves were intact. He had normal deep and superficial reflexes and no abnormal reflexes. There were no neurological deficits on examination. The examiner concluded that it was a normal physical examination. On the basis of this evidence, the October 1976 rating decision granted service connection for posttraumatic encephalopathy, assigning a noncompensable, or zero percent, disability rating, as well as right superior oblique palsy with diplopia, assigning a 30 percent disability rating. The rating decision discussed the service treatment records, which showed a head injury in March 1973 resulting in concussion and palsy of the superior oblique muscle. It further noted that based on current VA examination, the only complaint was double vision, and there was no other residual disability relating to the head injury. The Veteran has argued that the noncompensable rating assigned for posttraumatic encephalopathy in the October 1976 rating decision was CUE based on the evidence of record, which showed that he was hospitalized for three months following the in-service head injury and that he was fully paralyzed for one-and-a-half of those months. Essentially, he argues that the evidence showed a disability more severe than that reflected by the noncompensable rating assigned. Such argument is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator. However, "[i]t is the prerogative of the factfinder... to interpret the evidence and draw reasonable inferences from it." Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. The Veteran has also stated that the 1976 examiner told him he did not know how to rate his disability and that the more current 2013 VA examinations upon which the 70 percent rating was based are more accurate and should be applied retroactively. The Veteran's previous representative also argued that several studies dated in 2000, 2012, and 2015, showed that losses in color vision constituted neurobehavioral effects. As such, he argued that the 1976 VA examination finding regarding the red-green spectacles demonstrated a neurobehavioral effect, which warranted a compensable rating. The evidence that the Veteran contends is in support of his CUE claim was not of record at the time the October 1976 rating decision was issued. A determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell, 3 Vet. App. at 313-14. Therefore, evidence that was not of record at the time of the October 1976 rating decision cannot be the basis for finding that the RO committed CUE. Porter, 5 Vet. App. at 236. To the extent that the Veteran has stated that his 1976 VA examination was inadequate, such cannot constitute CUE. A breach of the duty to assist, to include failure to afford the Veteran an adequate VA examination, cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6?Vet. App.?377, 384 (1994). As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. In sum, as no other CUE arguments have been specifically pled, and for the reasons discussed above, the Board finds that there was no CUE in the October 1976 rating decision such that revision of the decision is required. The Veteran has not established that the correct facts were not before the RO at the time of the October 1976 rating decision or that the RO incorrectly applied the applicable statutory and regulatory provisions based on the interpretations of law existing at the time of that decision. Thus, the application to revise the October 1976 rating decision to reflect a higher rating for posttraumatic encephalopathy on the basis of CUE is denied. 2. The appeal seeking an effective date earlier than May 8, 2013, for the 70 percent disability rating for posttraumatic encephalopathy with mood disorder on the basis of equitable relief is denied. Primarily, the Veteran seeks an earlier effective date for the award of his 70 percent disability rating for posttraumatic encephalopathy on the basis of equitable relief as provided under certain circumstances as outlined in VA Policy Letter 21-16-03 (July 1, 2016; revised August 10, 2016). As noted above, the October 1976 rating decision granted service connection for posttraumatic encephalopathy, assigning a noncompensable, or zero percent, disability rating, effective from February 19, 1976. The Veteran then filed a claim for an increased rating for residuals of his in-service head injury, to include posttraumatic encephalopathy, received by VA on May 8, 2013. A December 2013 rating decision denied an increased rating. The Veteran filed a timely NOD, and in February 2018, the AOJ issued both a rating decision and a statement of the case (SOC) that granted an increased 70 percent disability rating for posttraumatic encephalopathy, effective from May 8, 2013, the date the Veteran's claim for an increased rating was received. The Veteran did not file a substantive appeal, but, rather, filed a new claim (VA Form 21-526) for an increased rating in September 2018. Consequently, the February 2018 rating decision assigning an effective date of May 8, 2013, for the award of the 70 percent rating became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. As explained in VA Policy Letter 21-16-03, VA requires that a physiatrist, psychiatrist, neurosurgeon, or neurologist conduct the initial TBI exam performed in conjunction with a claim for service connection for TBI when a diagnosis is not already established in VA or service treatment records. This requirement ensures that Veterans claiming service connection for TBI receive a comprehensive initial TBI exam to support their claims. However, since 2007, multiple policy changes by the Veterans Health Administration (VHA) and the Veterans Benefits Administration (VBA) resulted in a lack of clarity and inconsistent application of the requirement that a physiatrist, psychiatrist, neurosurgeon, or neurologist conduct initial TBI exams. Working collaboratively, VHA and VBA completed a nationwide review of TBI examinations performed between 2007 and 2015 in support of disability compensation claims for TBI. As a result of that review, VHA and VBA identified veterans examined during that period whose initial TBI exams were not conducted by one of the designated specialists. Due to this error on the part of VA, these veterans were incorrectly denied the opportunity to support their prior TBI claims with a comprehensive initial TBI exam conducted by a designated specialist. Since current law does not authorize VBA to obtain new TBI exams for the purpose of revisiting final TBI decisions - those where the Veteran was notified of VA's decision more than one year ago and no timely notice of disagreement was filed - the Secretary of Veterans Affairs granted equitable relief for these Veterans to correct prior administrative error by VA. Specifically, the VA Policy Letter stated that on May 3, 2016, the Secretary granted equitable relief that permits VA to provide new initial TBI exams to impacted veterans if they requested a new exam within one year from the date of VBA's written notification of the equitable relief. In these cases, VBA was authorized to accept the corrected TBI exam and any new evidence as if it were received in conjunction with the prior TBI claim. Thus, the equitable relief allowed VBA to grant an effective date for service connection or an increased initial TBI evaluation from the date of the TBI claim associated with the erroneous exam, where appropriate. Compensation Service sent a letter to affected Veterans on July 1, 2016, to provide information about the TBI equitable relief claims review and offered them an opportunity to request re-examination and reprocessing of their prior TBI claims. Importantly, impacted Veterans had one year from the date of VBA's written notification of the equitable relief, provided in 2016, to request reprocessing of their prior TBI claim under this review. The Board finds that an earlier effective date for the award of the 70 percent disability rating for posttraumatic encephalopathy is not warranted. First, the Veteran's current claim is a freestanding earlier effective date claim as he did not pursue an appeal of the February 2018 rating decision which granted the 70 percent disability rating effective from May 8, 2013. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). As stated above, the February 2018 rating decision is final. Thus, in the absence to an exception to the general rule, an earlier effective date is not available. For increased rating claims, the proper effective date is generally the date of receipt of claim, or the date entitlement arose, whichever is later, or the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date. 38 C.F.R. § 3.400(o). With regard to equitable relief under VA Policy Letter 21-16-03, the Veteran does not fall within the class of claimants for which this equitable relief is available because he was already in receipt of service connection for TBI when VBA issued VA Policy Letter 21-16-03. VA Policy Letter 21-16-03 states that all eligible claimants would be notified that equitable relief was available via letters sent by Compensation Service on July 1, 2016. However, there is no indication or contention that the Veteran received such a letter advising him that he was an impacted veteran as defined by VA Policy Letter 21-16-03. Moreover, review of VA Policy Letter 21-16-03 makes it clear that equitable relief was intended for those claimants who were not in receipt of service connection for TBI as of July 1, 2016, the date on which the policy letter was issued. Specifically, the Policy Letter was designed to provide a remedy for veterans who were incorrectly denied the opportunity to support their prior service connection claims with a comprehensive initial TBI exam conducted by a designated specialist. Finally, even if this Veteran was deemed to be within the class of veterans impacted by VA Policy Letter 21-16-03, the first time he requested equitable relief under the VA Policy Letter was via a September 10, 2018, letter, more than one year after issuance of the VA Policy Letter in July 2016. Because the Veteran does not fall within the class entitled to equitable relief in VA Policy Letter 21-16-03, the Board does not have the authority to grant an earlier effective date in the absence of CUE. As stated above, there is no CUE in the October 1976 rating decision in not assigning a compensable rating for posttraumatic encephalopathy. Thus, entitlement to an effective date prior to May 8, 2013, for the award of a 70 percent disability rating for TBI is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sherrard, T. 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.