Citation Nr: A26002145 Decision Date: 01/08/26 Archive Date: 01/08/26 DOCKET NO. 230426-342203 DATE: January 8, 2026 ORDER The motion for revision of a January 9, 2014, rating decision on the basis of clear and unmistakable error (CUE) to assign a 70 percent disability rating for unspecified depressive disorder with anxious distress is denied. FINDINGS OF FACT 1. In a final decision dated January 2014, a Department of Veterans Affairs (VA) Regional Office (RO) assigned a 30 percent disability rating for unspecified depressive disorder with anxious distress. 2. The Veteran and his representative have not alleged an error of fact or law in the January 2014 rating decision that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error. CONCLUSION OF LAW The criteria for revision of the January 2014 rating decision to change the disability rating assigned to the Veteran's unspecified depressive disorder with anxious distress are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105(a), REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from April 1980 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) from a November 2022 rating decision that denied entitlement to an earlier effective date for the recent award of a 70 percent disability rating for the Veteran's psychiatric disability on the basis of CUE. In the April 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. However, with respect to the CUE appeal, the Board may only consider evidence of record at the time of the challenged decision, as explained in further detail below. To the extent the appeal also encompasses a substantive appeal of the effective date of the assignment of the 70 percent disability rating for a psychiatric disability separate and apart from the CUE theory, the Board may only consider the evidence of record at the time of the June 2022 agency of original jurisdiction (AOJ) decision that led to the November 2022 higher-level review decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the June 2022 AOJ decision 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. Legal Standard A previous Regional Office determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes clear and unmistakable error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). 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. 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. In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Fugo v. Brown, 6 Vet. App. 40 (1993). 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. 38 C.F.R. § 3.105(a). CUE is established when either the correct facts in the record were not before the adjudicator, or the statutory or regulatory provisions in existence at the time were incorrectly applied. The alleged error must be undebatable, not merely a disagreement as to how the facts were weighed or evaluated. 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 made. Evans v. McDonald, 27 Vet. App. 180 (2014); Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (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. Porter v. Brown, 5 Vet. App. 233 (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 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. King v. Shinseki, 26 Vet. App. 433 (2014). Analysis As a threshold matter, the Board finds that the January 2014 rating decision that is the subject of the CUE motion became final. The Veteran and his representative at the time were sent notice of that decision later that month as well as information regarding his rights to appeal that decision. VA did not receive new and material evidence within a year of his notification of that decision. Accordingly, it became final. The Board also finds that, to the extent that the Veteran's appeal also includes a substantive appeal of the effective date, it must dismiss the appeal. In the June 2022 initial rating decision that addressed this question and the November 2022 higher-level review decision, it appears that the AOJ may have substantively addressed the issue of entitlement to an earlier effective date for the assignment of the 70 percent disability rating. However, that disability rating was assigned in a November 2018 rating decision. The Veteran did not timely appeal that decision or submit new and material evidence with respect to the effective date assigned in that decision within the one-year appeal period. He also did not file a supplemental claim regarding that issue in the modernized appeal system. It therefore became final. Any attempt to challenge that effective date on a substantive basis represents a freestanding earlier effective date claim which must be dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board will therefore turn back to the primary focus of the appeal regarding whether VA committed CUE in its January 2014 rating decision. In addition to its finality analysis, the Board must also make a threshold determination of whether the motion that asserts that error has been adequately pled. The Board finds that the CUE motion currently on appeal meets those requirements. See 38 C.F.R. § 3.105(a)(1)(vii); Simmons v. Principi, 17 Vet. App. 104 (2003). The January 2022 motion that the Veteran's representative has submitted is relatively straightforward. It contends that VA clearly and unmistakably failed to properly consider and evaluate the evidence in 2014 when it assigned the 30 percent rating. The motion alleges that the evidence at that time relating to the psychological disability most closely approximated the criteria for a 70 percent disability rating. In support of this contention, the motion compares the results of a March 2018 VA psychiatric examination that led to VA's April 2018 grant of a 70 percent rating for the Veeran's psychiatric disability to the results of the December 2013 VA psychiatric examination. More specifically, the motion contends that the 2013 examination report reflected the following symptoms that warranted a 70 percent disability rating: panic attacks more than once a week; depressed mood; suicidal ideation; anxiety; disturbances of motivation and mood; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; frequent periods of hopelessness and helplessness; guilty feelings; decreased energy; decreased interests; decreased appetite; excessive worry; irritability and poor frustration tolerance but without violence; and near-continuous panic affecting the ability to function independently, appropriately, and effectively. To succeed on the appeal, the evidence must show that it was undebatable that VA misapplied the rating criteria in evaluating the Veteran's psychiatric disability in January 2014. The Board ultimately does not find that that high bar has been met. The rating criteria for the evaluation of psychiatric disabilities has not substantially changed since the time of the January 2014 rating decision. As is now the case, psychiatric disabilities were rated using the General Formula for Mental Disorders (General Formula), 38 C.F.R. § 4.130. The symptoms listed in the General Formula are not intended to constitute an exhaustive list but rather serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, VA must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vazquez-Claudio, 713 F.3d at 116-17. The General Formula, 38 C.F.R. § 4.130, Diagnostic Code 9411, provides, in pertinent part, as follows: Rating (%) 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 to time or place; memory loss for names of close relatives, own occupation, or own name. 100 Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous 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 worklike setting); inability to establish and maintain effective relationships. 70 Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 50 Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 30 Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. Id. Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Applying these criteria to the evidence of record, the Board does not find that it was undebatable in January 2014 that a 70 percent disability rating was warranted. At the outset, the Board notes that the representative's motion correctly notes that the Veteran attended a December 2013 VA medical examination and also contains an accurate list of the symptoms that the examiner who completed that evaluation had included in her report. At that examination, the Veteran appeared to have largely attributed his psychiatric symptoms to his service-connected heart disorder. The examiner indicated that he had reported symptoms of fear and panic when experiencing episodes of cardiac events relating to his atrial fibrillation and that those episodes resulted in him having to leave work due to panic attacks. The relevant mental health history section also included reports of occasional suicidal ideation as well as frequent feelings of hopelessness, helplessness, guilt, and excessive worry. In the section specifically dedicated to symptoms in that examination report, the examiner only indicated that the Veteran's psychiatric diagnosis had the following symptoms: depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; and suicidal ideation. Other symptoms reported by the examiner included: frequent periods of hopelessness and helplessness; guilty feelings; decreased energy; decreased interests; decreased appetite; irritability and poor frustration tolerance but without violence; and excessive worry. Notably, despite those symptoms, the examiner also indicated that the Veteran was at the time working as a unit chief in management support for a federal agency. The Veteran reportedly denied interpersonal difficulties with coworkers, supervisors, or subordinates. The concentration difficulties he had also reportedly did not interfere with his leadership position as others performed a lot of labor tasks for him. Of critical importance to the Board's current analysis, the examiner who conducted that evaluation provided an opinion on the impact the Veteran's psychiatric disability had on his social and occupational functioning. After personally examining the Veteran and reviewing the Veteran's claims folder, she opined that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The representative would have the Board find that this evidence clearly and unmistakably warrants a 70 percent disability rating under the General Formula and that is undebatable error to fail to assign that rating in light of the evidence. The Board does not agree. Notably absent from the representative's brief is any mention of the opinion of the VA psychiatric examiner's December 2013 medical examiner regarding the level of social and occupational impairment caused by the Veteran's service-connected psychological disability. That opinion, described above, is consistent with a 30 percent disability rating under the General Formula. The representative's brief also omits any reference to the rather substantial and ongoing job activities that seem to have been reported by the December 2013 examiner. In light of the opinion and vocational evidence referenced in the December 2013 VA examination report and the relatively sparse evidence of any treatment for this disability outside of the brief mentions of treatment using Effexor and the Veteran's reports of subjective symptoms to his primary care physician, the Board does not find that it is undebatable that the criteria for a 70 percent disability rating were met. With competent evidence of record suggesting that those criteria were not met, the Board finds that the representative's arguments represent an attempt to reweigh the evidence and place more probative value on the more beneficial evidence of record at the time of the January 2014 rating decision. This reweighing of evidence cannot constitute CUE. The appeal to revise the January 2014 rating decision on the basis of CUE is therefore denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.