Citation Nr: 25008985 Decision Date: 07/09/25 Archive Date: 07/09/25 DOCKET NO. 25-00 046 DATE: July 9, 2025 ORDER The motion for reversal or revision of the September 11, 1992, Board of Veterans' Appeals that remanded entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on the basis of clear and unmistakable error (CUE) is dismissed. The motion for reversal or revision of the September 11, 1992, Board of Veterans' Appeals that increased the rating for post-traumatic stress disorder (PTSD) to 50 percent on the basis of CUE is denied. FINDINGS OF FACT 1. The Veteran has alleged CUE in the September 1992 Board decision, which remanded the issue of entitlement to a TDIU. 2. The correct facts, as known at the time, were before the Board in September 1992 regarding the rating of PTSD and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSIONS OF LAW 1. The Board's September 11, 1992, remand as to the claim of entitlement to a TDIU is not a final decision and is not subject to revision on the basis of CUE. 38 U.S.C. §§ 5109A, 7103, 7104, 7111; 38 C.F.R. §§ 20.1100, 20.1400-1411. 2. The criteria for reversal or revision of the September 11, 1992, Board of Veterans' Appeals that increased the rating for post-traumatic stress disorder (PTSD) to 50 percent on the basis of CUE have not been met. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-11. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1966 to March 1969 with service in Camp Lejeune from April 1968 to March 1969 and combat service in the Republic of Vietnam, where the Veteran served from March to July 1967. The Veteran's decorations include the Purple Heart Medal. This matter comes before the Board on the Veteran's motion for revision of the September 1992 Board decision on the grounds of CUE, which granted a rating of 50 percent, but no higher, for PTSD, and remanded entitlement to a TDIU. 1. The motion for reversal or revision of the September 11, 1992, Board of Veterans' Appeals that remanded entitlement to a TDIU. All final Board decisions are subject to revision on the basis of CUE, except for those decisions that have been appealed to and decided by the United States Court of Appeals for Veterans Claims (Court) and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. A remand is in the nature of a preliminary order and does not constitute a final decision of the Board. 38 C.F.R. § 20.1100(b). An assertion of CUE is a collateral attack on an otherwise final decision. See Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994); May v. Nicholson, 19 Vet. App. 310 (2005) (CUE motions cannot lie as to decisions still open to direct review). Issues remanded by the Board are not final pending their readjudication by the AOJ. Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed. Cir. 2005). Procedurally, in September 1992, the Board remanded the appeal for entitlement to a TDIU for further development. In correspondence received on February 2025, the Veteran alleged errors of fact and law in the Board's September 1992 decision, which remanded entitlement to a TDIU. The Board interprets these correspondences as a CUE motion seeking reversal or revision of the February 2025 Board remand. As the Veteran has alleged CUE in a non-final Board remand on the issue pertaining to entitlement to a TDIU, the Board does not have jurisdiction to adjudicate the merits of the motion, as it cannot be subject to reversal or revision based on CUE. See 38 C.F.R. § 20.1100(b); see also Acosta v. Principi, 18 Vet. App. 53 (2004); Breeden v. Principi, 17 Vet. App. 475 (2004). Therefore, the motion must be dismissed as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran may file a CUE motion with a final Board decision on that claim if he believes such error occurred. Consequently, the CUE motion currently before the Board regarding entitlement to a TDIU in the September 1992 Board decision is dismissed. See 38 C.F.R. § 20.1404; Simmons v. Principi, 17 Vet. App. 105 (2003). 2. The motion for reversal or revision of the September 11, 1992, Board of Veterans' Appeals that increased the rating for PTSD to 50 percent. The Veteran asserts that there is CUE in the September 1992 Board decision, which granted a rating of 50 percent, but no higher, for PTSD. Under 38 U.S.C. § 7111, a prior Board decision may be reversed or revised on the grounds of CUE. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice at 38 C.F.R. §§ 20.1400-1411. The motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, 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 different but for the alleged error. 38 C.F.R. § 20.1404(b). The determination of whether a prior Board decision was based on CUE must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b)(1). CUE is a very specific and rare kind of error. It is the 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. 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. 38 C.F.R. § 20.1403(a); see also Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 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 that, 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 CUE. 38 C.F.R. § 20.1403(c); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly holding that in order to prove the existence of CUE, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). Examples of situations that are not CUE include a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; the Secretary's failure to fulfill the duty to assist; and disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). As a threshold matter, the Board finds that the arguments advanced by the appellant allege CUE with the requisite specificity in light of the Board's duty to read the Veteran's submissions sympathetically. See 38 C.F.R. § 20.1404(b); see Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005). Further the manifestly changed outcome may be inferred from the pleadings, even though not explicitly stated. See Canady v. Nicholson, 20 Vet. App. 393, 401-02 (2006). The Veteran, through his representative, argues that the September 1992 Board decision committed CUE by ignoring evidence from treating doctors that reveals, at its worst, homicidal tendencies and a constant, daily infliction of mental torment that stems from the Veteran's confirmed PTSD. Specifically, the Veteran asserts that the Board failed to mention and discuss evidence showing a homicidal event with the Veteran's first spouse, suicidal ideation, unsuccessful treatment attempts, addiction problems, the Veteran dropping out of treatment when referred to addiction therapy, and the use of alcohol to help with sleeping. The Veteran argues that the Board only relied on evidence of recent examinations. See Third Party Correspondence, February 2025. At the time of the September 1992 Board decision, Diagnostic Code 9411 (effective February 3, 1988) provided that a 30 percent evaluation required definite impairment in the ability to establish or maintain effective or wholesome relationships with people, and psychoneurotic symptoms that result in such reduction in flexibility, efficiency, and reliability levels as to produce definite social impairment. The term "definite" has been defined as "distinct, unambiguous, and moderately large in degree," representing a degree of social and industrial inadaptability that was "more than moderate but less than rather large." VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); see also Hood v. Brown, 4 Vet. App. 301 (1993). A 50 percent evaluation required considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and psychoneurotic symptoms that result in such reduction in reliability, flexibility, and efficiency levels as to produce considerable industrial impairment. A 70 percent evaluation required severe impairment in the ability to establish and maintain effective or favorable relationships with people; the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation required virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. Further, the Court held that these criteria provide three independent bases for granting a 100 percent disability evaluation. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In addition, VA promulgated 38 C.F.R. § 4.16(c), effective March 1, 1989, which stated that in cases where a mental disorder was assigned a 70 percent evaluation, and such mental disorder precluded a Veteran from securing or following a substantially gainful occupation, in such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. See 54 Fed. Reg. 4280-01 (Jan. 30, 1989). 38 C.F.R. § 4.16(c) (1996) was repealed when the revised criteria for rating psychiatric disabilities became effective on November 7, 1996. 61 Fed. Reg. 52695 (Oct. 8, 1996). In the September 1992 decision, the Board stated that the most recently dated medical evidence of record discloses that the Veteran has been receiving rather intensive psychotherapy from both VA and non-VA health care providers. The disabling manifestations of his post-traumatic stress disorder have varied from mild to considerable during the last several years and depression has been a significant component of the Veteran's overall psychiatric disability. The Board noted that the private psychotherapy reports, which are more numerous than the VA records on file, have been particularly informative as to the severity of the Veteran's PTSD. The Board also noted that the Veteran was afforded a VA examination in April 1991. During the examination, the Veteran reported symptomatology including bad dreams, nightmares, sweats, and flashbacks to his combat service in Vietnam. He reported avoiding people, having restricted feelings except for his family, memory loss and poor concentration, diminished interest in activities around him, poor sleep, quick to anger, hypervigilant, and a startle response to noise and touch. The 1992 Board decision found that the symptomatology reported by the Veteran, and demonstrated while in receipt of psychotherapy, more closely approximates a level of severity contemplated in the next higher evaluation of 50 percent. The 1992 Board reasoned that while the Veteran has not required inpatient care for his psychiatric disability, his need for frequent psychotherapy when evaluated in association with the level of symptomatology and exacerbations reported in the evidentiary record, allows the Board to conclude that the record supports assignment of a 50 percent evaluation. The 1992 Board further concluded that severe social and industrial impairment, which would warrant the next higher evaluation of 70 percent, is not shown by the evidentiary record at this time. The Veteran contends that the Board ignored medical evidence other than VA examinations at the time of the 1992 Board decision. However, as noted above, the Board did reference and consider private psychotherapy reports and evidence from VA and non-VA health care providers. Based on this evidence, the Board found that the Veteran's PTSD symptoms did not amount to the level of severe social and industrial impairment. The Veteran's argument is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator. Nevertheless, "[i]t is the prerogative of the factfinder... to interpret the evidence and draw reasonable inferences from it." Evans, 7 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. It is true that the 1992 Board did not list every piece of evidence in its decision. However, failure to specifically mention evidence of record, as opposed to denying the outright existence of the favorable evidence, is not CUE. King v. Shinseki, 26 Vet. App. 433, 440 (2014) (citing Eddy, 9 Vet. App. at 58) (distinguishing Bouton v. Peake, 23 Vet. App. 70, 71 (2008)); see also Crippen v. Brown, 9 Vet. App. 412, 422 (1996). Moreover, the Board is presumed to have considered all evidence of record. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); cf. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). As a final note, the benefit-of-the-doubt doctrine is also not for application in claims of CUE. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (noting that the benefit-of-the-doubt rule could never be applicable in assessing a CUE motion as the benefit-of-the-doubt rule deals with the weighing and evaluation of evidence, and an allegation of CUE must be more than a disagreement as to how the facts were weighed or evaluated). For these reasons, the Board finds that it is not clear that the correct facts, as known at the time, were not before the Board at the time of the September 1992 Board decision, or that the statutory and regulatory provisions extant at the time were incorrectly applied. The Veteran is ultimately disagreeing with the judgment of the Board deciding the claim at that time. Consequently, the motion to revise or reverse the decision is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Leigh, Sara 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.