Citation Nr: 1829772	
Decision Date: 08/06/18    Archive Date: 08/17/18

DOCKET NO.  15-22 773A	)	DATE
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THE ISSUE

Entitlement to revision of a June 17, 1986, Board decision denying entitlement to a permanent and total disability rating for pension purposes on the basis of clear and unmistakable error (CUE).


REPRESENTATION

Moving party represented by:  Daniel G. Krasnegor, Attorney


ATTORNEY FOR THE BOARD

Tracie N. Wesner, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from April 1974 to September 1974.  This matter is before the Board as an original action on the motion of the Veteran in which he alleges CUE in an June 17, 1986, Board decision that denied entitlement to a permanent and total disability rating for pension purposes.  


FINDINGS OF FACT

1.  In an June 17, 1986, decision, the Board denied the Veteran's claim seeking a permanent and total rating for pension purposes.

2.  The correct facts, as they were known at the time of the June 17, 1986, decision were before the Board, and any error in applying the statutory or regulatory provisions extant at the time did not manifestly change the outcome of the appeal.


CONCLUSION OF LAW

The June 17, 1986, Board decision denying entitlement to a permanent and total rating for non-service connected pension purposes was not clearly and unmistakably erroneous.  38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran alleges CUE in the Board's June 17, 1986, decision, asserting that the Board erred in framing the issue as entitlement to a permanent and total rating for non-service connection pension purposes and failing to apply the provisions of 38 C.F.R. § 3.344.  By way of background, the Veteran was found to have a permanent and total disability in March 1977 that rendered him unemployable.  Entitlement to non-service connected pension benefits was established effective July 28, 1976, based on the following disabilities:  anxiety neurosis with schizoid trends, rated 50 percent disabling; bronchial asthma with chronic obstructive lung disease, rated 30 percent disabling; and hypertrophic rhinitis, rated 10 percent disabling-for a combined disability rating of 70 percent.

VA examinations were conducted in October 1984.  Based in part on the findings of these examinations, the RO concluded that the Veteran's disabilities had improved to the point that he was no longer precluded from gainful employment.  In a January 1985 rating decision, the RO reduced the Veteran's permanent and total rating and terminated the Veteran's award of non-service connected pension benefits.  He was notified in a February 1985 letter that the termination of his pension benefits would be effective May 1, 1985.  The Veteran appealed the RO's determination.  A personal hearing was held in June 1985.  

In a June 17, 1986 decision, the Board found that the medical evidence of record reflected no more than a moderate amount of back, psychiatric, and respiratory difficulty.  The Board further found that the Veteran's disabilities were not sufficient to prevent the him from obtaining or maintaining some form of substantially gainful employment for the rest of his lifetime.  Hence, the Board denied entitlement to a permanent and total disability rating for pension purposes.

In July 1986, the Veteran sought to reopen his claim of entitlement to a permanent and total disability rating for pension purposes.  His claim was denied by the RO in February 1987 and denied by the Board in a January 1989 decision.  

The Veteran again sought to reopen his claim for non-service connection benefits, which was granted by the RO in a December 1989 rating decision.  After an appeal of the effective date assigned, the Board, in a 1996 decision, granted an effective date of January 31, 1989.  The Veteran seeks to have his pension benefits reinstated effective May 1, 1985, the date that they were terminated by the RO.  

The Veteran's representative makes essentially two arguments in the motion for revision on the basis of CUE.  First, the representative argues that the "claim" of entitlement to restoration of the permanent and total rating remains a pending, unadjudicated claim because that issue was not specifically addressed by the Board in the June 1986 decision.  As to CUE in the June 1986 Board decision, the Veteran's representative argues that the Board failed to apply the provisions of 38 C.F.R. § 3.344(a) to determine if the reduction of the permanent and total rating (upon which pension benefits was based) was proper.  The Veteran's representative argues that the evidence of record was insufficient to support a finding of sustained improvement in the Veteran's disabilities under the ordinary conditions of life.  See July 2015 Motion for Reconsideration/Revision.

Legal Standard for Revision based on CUE

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 Veteran 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).  

Implicit Denial of "Improper" Pension Termination Issue

As an initial matter, the Board must determine whether the Veteran's appeal of the reduction of his permanent and total rating and subsequent termination of pension benefits was denied in the June 17, 1986 Board decision.  See Richardson v. Nicholson, 20 Vet. App. 64, 72 (2006).  If the appeal is still pending, it should be adjudicated and there is no need to reach CUE.  If it was finally decided, then it may be revised on the basis of CUE.  Id.

A claim for VA benefits remains pending until it is finally adjudicated, or if VA fails to properly notify the claimant of the denial of the claim.  Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009); 38 C.F.R. § 3.160(c); Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc).  "It is well established, however, that in certain circumstances, pursuant to the implicit denial doctrine, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address that claim in its decision." Cogburn v. Shinseki, 24 Vet. App. 205, 210 (2010) citing Adams, 568 F.3d at 961 (internal quotations omitted)' Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007).  The Court in Ingram determined that where a decision discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not "specifically" deny that claim.  Id.  The key question in the "implicit denial" inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well.  Adams, 568 F.3d at 962-963.

In Cogburn v. Shinseki, 24 Vet. App. 205 (2010), the Court listed four factors that must be considered when determining whether a claim was implicitly denied: (1) the specificity or relatedness of the claims (e.g., is the claim for a generalized set of symptoms, a specifically diagnosed disorder, or two (or more) specifically diagnosed disorders that are closely related); (2) whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied; (3) the timing of the claims (e.g., were the claims filed in the same application, within a short period of time from each other, etc.); and (4) whether the claimant is represented.  Id. at 212-214.

In this case, the Board finds that the claim that the Board adjudicated in June 7, 1986 and the "claim" the Veteran asserts is still pending is the same claim.  In the context of determining whether a claim remains pending or was finally decided, the word "claim," means a request for a particular benefit, i.e., pension benefits.  See Rice v. Shinseki, 22 Vet. Ap. 447, 451 (2009) (noting that the term "claim" has been used to describe a wide variety of circumstances, and that in Ingram the word "claim" means "the specific benefit sought"); Ingram, 21 Vet. App. at 247 (noting that the elements of a section 1151 "claim" and a pension "claim" are entirely different); 38 C.F.R. § 3.1(p) ("claim" means a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA).  Although the Board inaccurately characterized the issue on appeal as one of entitlement to a permanent and total rating for pension purposes rather than the propriety of the reduction, the ultimate benefit sought by the Veteran was the same - the reinstatement of his pension benefits.  Moreover, the Board noted in the June 1986 decision that it was on appeal from the January 1985 rating decision that terminated the Veteran's pension benefits.  There was no question that after the June 1986 Board decision, the Veteran understood that his appeal of the termination of his pension benefits was denied, and that he would no long be receiving such benefits. To now suggest that claim decided by the Board in June 1986 was somehow a completely separate request for benefits than what the Veteran originally appealed (and for which he now seeks an earlier effective date) misunderstands the meaning of the word "claim" in the jurisprudence addressing whether a claim remains pending and unadjudicated.    

Even assuming that the claims were not exactly the same and the 1986 Board decision did not explicitly deny restoration the Veteran's permanent and total rating, consideration of the Cogburn factors leads to a finding that the "claim" of restoration of pension benefits was implicitly denied in the June 1986 Board decision.  Although the Veteran was not represented by an attorney in 1989, an analysis of the remaining factors shows that it would be clear to a reasonable person that VA denied pension benefits.  The Board decision noted that the claim on appeal arose from the termination of the Veteran' pension benefits in the January 1985 rating decision.  The decision explained that entitlement to pension benefits required a finding that the Veteran was permanently and totally disabled as a result of disability, and the Board found that the evidence did not support such a finding.  There is no question that the Board provided enough information in its June 17, 1986 decision for the Veteran to reasonably know that his permanent and total rating would not be restored, and his pension benefits would not be reinstated.  See Ingram, supra.  Thus, the relatedness, timing and specificity of the adjudication factors in Cogburn all support a finding that the implicit denial doctrine would apply, and that no claim seeking restoration of pension benefits remains pending.  

CUE in the June 17, 1986 Board Decision

Having determined that the appeal concerning the propriety of the pension termination was implicitly denied, the Board will now address whether the June 17, 1986 Board decision should be revised on the basis of CUE.  The Board finds that no revision is warranted because any alleged error in failing to apply the provisions of 38 C.F.R. § 3.344 did not manifestly change the outcome of the appeal.  

As an initial matter, the Board notes that the Veteran has not alleged any error in the procedural due process steps that were required to be taken prior to the reduction or termination of pension benefits in 1985-1986, and the Board finds that the rather minimal procedural requirements of 38 C.F.R. § 3.105(f) in effect at the time were met.  The Veteran was given notice of the reduction/termination prior to its effective date, the reduction did not take place prior to the last day of the month in which it was approved, and he was provided a personal hearing upon his request.  

There is no dispute that the Board did not discuss the regulatory provisions of 38 C.F.R. § 3.343 and 3.344 in determining whether the reduction of the Veteran's permanent and total disability rating was proper, and that these regulations applied in this case because the Veteran's permanent and total rating was in effect for more than five years.  38 C.F.R. § 3.344(c).  The provisions of these sections are substantially the same now as they were in 1986.  Section 3.343(a) states:

Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced . . . without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).

Section 3.344(a) states, in relevant part

Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and [VA] regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history.  . . . Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement . . . will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. . ..  Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.

The Veteran contends that based on the evidence of record in June 1986, reasonable minds could not differ as to the result the Board could have reached.  Specifically, he contends that the evidence of record in 1986 did not support a finding of sustained improvement in his disabilities had been demonstrated under the ordinary conditions of life.  See July 2015 Motion for Reconsideration/Revision.  

However, the Board finds that there was sufficient evidence of record in June 1986 to find that the Veteran's disabilities showed material improvement under the ordinary conditions of life, and that it was reasonably certain that the improvement would be maintained under the ordinary conditions of life.  The January 1977 VA psychiatric examination upon which the Veteran's permanent and total rating was based (in part) noted that the Veteran was very querulous and plaintive, argumentative and vindictive.  He was noted to feel that people were against him because of his experience in the Army and that he lost all of his friends and his wife.  He reported disturbed sleep, noting that he hears noises and has visions of women coming close to his bed and pulling him by his arms and legs.  The VA examiner found that he was obsessed with the idea that military police were coming to arrest him.  He was noted to need constant sedation and have defective insight and judgment capacity.  The Board also notes that a June 1976 VA hospital summary showed that the Veteran was complaining of insomnia, irritability, anxiety, episodes of rage, poor control and frequent homicidal ideation. He reported feeling that people were against him, and that he could not trust others.  He also stated that he believed that "people use the influence of spirits to harm him."  

By contrast, the October 1984 VA examination showed that the Veteran had no homicidal ideation, hallucinations, delusions, obsession or psychosis.  He reported feeling anxious and depressed all the time, having nightmares, and feeling restless most of the time, but he appeared at the examination to be alert, verbal and cooperative.  The October 1984 VA examiner noted that the Veteran was disoriented in time and had diminished concentration, but he had fair memory (remote, recent and immediate) abstraction, judgement and insight.  The Veteran reported feeling that he was unjustly treated and exhibited marked hostility toward the military, but was not noted to be obsessed.  The findings of this VA examination show improvement in the Veteran's psychiatric symptoms from the January 1977 VA examination.  The Board found in the June 1986 decision that the Veteran's disabilities did not show more than a moderate amount of difficultly or impairment, and was not satisfied that the disabilities were of such severity as to render the Veteran unable to obtain or maintain substantially gainful employment.  Additionally, the evidence shows that the Veteran was attempting to seek work during the relevant time period, as evidenced by the  lay statements submitted.  See April 1986 Statements of G.C.F. and J.C.V.  Thus, the record contained sufficient evidence to show that the improvement in the Veteran's disabilities constituted improvement under the ordinary conditions of life.  

Additionally, the April through July 1985 VA medical records contain evidence of sustained improvement in the Veteran's psychiatric symptoms, or evidence to support a finding that it was reasonable certain that the improvement would be maintained under the ordinary conditions of life.  The April 1985 VA medical record shows a report of anger, irritability and aggressiveness at home, but notes that these symptoms abated, and his aggression was much improved.  The Board notes that the May 1985 and July 1985 VA medical records show report of the Veteran seeing images of dead people and hearing noises in his dreams and during the day, but the July VA medical provider also noted that the Veteran had good contact with reality.  There is no notation of homicidal ideation (either frequent or occasional), feeling distrustful of others, or obsessive thoughts.  The Board acknowledges that the lay statements submitted by G.C.F. and J.C.V. indicate that the Veteran had difficulty working with others, showed signs of aggressiveness, and was speaking incoherently about dead people and ghosts.  Nevertheless, as there was evidence to support findings that the Veteran had material improvement in his symptoms under the ordinary conditions of life and work and it was reasonably certain that the improvement would be maintained under the ordinary conditions of life, the Board today cannot say that the evidence of record in June 1986 was so overwhelming that reasonable minds could not differ on these issues.  "It is the prerogative of the factfinder . . . to interpret the evidence and draw reasonable inferences from it."  Evans v. McDonald, 27 Vet. App. 180, 187 (2014) (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 Board today cannot supply its own judgment as to the credibility and probative value determinations that would have been made in June 1986 decision, and cannot find CUE in the June 1986 decision merely because it would have decided the matter differently.  Revision on the basis of CUE may only be granted where reasonable minds could not differ that the result would have been manifestly different but for the error.

The Board acknowledges that in support of his claim, the Veteran submitted a November 1994 decision of the Board issued in another claimant's case, granting reconsideration of an October 1985 Board and reinstating pension benefits.  In that November 1994 decision, the Board found that the evidence of record in that case did not support a finding that the veteran had sustained improvement which was reasonably certain to be maintained under the ordinary conditions of life, and thus found that the reduction of the permanent and total rating was void ab initio.  Nevertheless, previously issued Board decisions will be considered binding only with regard to the specific case decided.  38 C.F.R. § 20.1303.  Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.  Id.  Here, the November 1994 reconsideration decision addresses similar issues as addressed in this case, but the individual facts are different.  

The Board is also cognizant that the Court has held that when the issue raised is a rating reduction and it is determined that the reduction was made without observance of law, including the provisions of 38 C.F.R. §§ 3.343(a) and 3.344(a), the Court has declared the reduction void ab initio and has ordered reinstatement of the prior rating.  Schafrath v. Derwinski, 1 Vet. App. 589, 595-96 (1991); Brown v. Brown, 5 Vet. App. 413 (1993); King v. Shinseki, 26 Vet. App. 484, 492-93 (2014) (applying Brown, and Schafrath to severance of non-service connected pension benefits).  The Court held that this approach finds support by analogy in the special procedural prerequisites of  38 C.F.R. § 3.105, as it is "implicit in the regulations that a . . . rating reduction is invalid if these procedures are not followed.  Schafrath, 1 Vet. App. at 596 (citing to 38 C.F.R. § 3.105(e), (g), (h) (1991); cf. In Re Fee Agreement of Smith, U.S. Vet. App. No. 91-619, slip op. at 7 (Oct. 7, 1991) (per curiam)).  

However, the plain language of 38 C.F.R. § 20.1403(e) states that CUE does not include 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.  "A determination that there was a CUE must be based on the record and the law that existed at the time of the prior... decision."  Russell v. Principi, 3 Vet. App. 310, 314 (1992).  This standard requires that a determination of whether revision is warranted on the basis of CUE must be based on the law as it was understood at the time of the decision.  A judicial decision that formulates a new interpretation of the law subsequent to a final VA decision cannot be the basis of a valid CUE claim.  Berger v. Brown, 10 Vet. App. 166, 170 (1997) ("[w]e do take this occasion to specifically hold opinions from this Court that formulate new interpretations of the law subsequent to [an agency] decision cannot be the basis of a valid CUE claim"); Damrel v. Brown, 6 Vet. App. 242, 246 (1994).  Although a judicial decision must be given full retroactive effect in all cases that are still open on direct review, it does not affect decisions that are final.  Smith v. West, 11 Vet. App. 134, 37-38 (1998); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995) ("new legal principles, even when applied retroactively, do not apply to cases already closed").  Nothing in the applicable statute or regulation allowing for revision of a final Board decision on the basis of CUE indicates that a prior final and binding decision may be reversed or amended because a new judicial determination changed the way an existing law was interpreted.  38 U.S.C. § 5109A; 38 C.F.R. § 20.1403.  Consequently, judicial decisions issued after June 1986 cannot serve as the basis for a claim that the Board committed a clear error of law in June 1986.

The Board also acknowledges that the Veteran has challenged the adequacy of the October 1984 VA psychiatric examination, stating that the examination was incomplete and the examiner spent time talking about religious issues.  Although duty to assist errors cannot form the basis of CUE, the Board also acknowledges that the relevant regulatory provisions require that the VA examinations upon which a reduction is based be "full and complete."  38 C.F.R. § 3.344.  To that end, the Board notes that the October 1984 VA examination report discusses the history of the Veteran's psychiatric disorder, addressed his current symptoms, daily activities, interpersonal relationships and mental status.  Thus, reasonable minds could differ as to whether the October 1984 VA examination was full and complete, and thus sufficient to form the basis of the permanent and total rating reduction.  

Finally, the Veteran has also argued that VA erred in reducing his permanent and total rating based on a single examination, where 38 C.F.R. § 3.344 states that ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  However, the Board notes that the evidence of record in June 1986 included VA medical records showing treatment for the Veteran's psychiatric disability between April 1985 and July 1985, not only the October 1984 VA examination.  Thus, the Board does not find the Veteran's argument on this issue persuasive.

Considering the foregoing, the Board finds that the Veteran has not established that, but for incorrect application of the statutory or regulatory provisions, the outcome of the claim would have been manifestly different.  Accordingly, the Board concludes that there was no CUE in the June 17, 1986, Board decision finding that entitlement to a permanent and total disability rating for pension purposes was not established.  As such, the Veteran's motion for revision is denied.


ORDER

The Veteran's motion to revise or reverse the June 17, 1986, Board decision denying entitlement to a permanent and total disability rating for pension purposes, is denied.


                       ____________________________________________
STEVEN D. REISS
 	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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