Citation Nr: 18154136
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-13 637
DATE:	November 29, 2018
ORDER
The October 17, 1986 Department of Veterans Affairs (VA) Regional Office (RO) rating decision granting an increased disability rating of 70 percent for service connected depressive neurosis was not clearly and unmistakably erroneous (CUE).
FINDING OF FACT
The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the October 17, 1986 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it granted an increased disability rating of 70 percent for service connected depressive neurosis.
CONCLUSION OF LAW
The October 17, 1986 rating decision granting an increased disability rating of 70 percent for service connected depressive neurosis was not clearly and unmistakably erroneous.  38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran, who is the appellant, had active service from February 1966 to November 1974.
This matter came before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits.  
38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE.  Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc).  Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issue on appeal.
CUE in October 17, 1986 Depressive Neurosis Disability Rating
Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE.  Where evidence establishes such error, the prior rating decision will be reversed or amended.  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 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.
The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).
The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error.  See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246.
If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error.  Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44.  If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law.  Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994).  Further, VA’s failure in the duty to assist cannot constitute CUE.  See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003).
At the outset, the Board now finds that the October 17, 1986, rating decision became final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R.  §§ 3.156, 20.302, 20.1103 (2017).  In a June 1998 decision, the Board found that the October 17, 1986 rating decision became final.  Because the October 17, 1986 rating decision became final, the Board now has jurisdiction to decide the instant RO CUE claim.  The Board finds that the Board was correct in its June 1998 decision when it found that the October 17, 1986 rating decision became final, so was not subsumed by the June 1998 Board decision or a later final Board decision; therefore, the issue currently on appeal to the Board is whether there was CUE in the October 17, 1986 rating decision to assign a 70 percent rating (rather than a 100 percent rating) for the service-connected psychiatric disability. 
Next, the Board finds the allegations of CUE in the October 1986 rating decision made by the Veteran and representative are adequate to meet the threshold pleading requirements.  See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits).
The Board has reviewed all the Veteran and representative’s CUE argument briefs.  Such advanced argument is essentially as follows, had the RO properly applied the relevant mental health rating legal criteria at the time of the October 17, 1986 rating decision, an increased total (100 percent) disability rating would have been awarded due to the Veteran’s inability to work because of the service connected depressive neurosis symptoms.
Under the law and regulations in effect at the time of the October 17, 1986 rating decision, disability ratings were determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (1986).  If two ratings were potentially applicable, the higher rating was to be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating was to be assigned.  38 C.F.R. § 4.7 (1986).
The service connected depressive neurosis was rated under Diagnostic Code 9405, which provided for a total 100 percent disability rating when mental health symptoms showed that a Veteran was “demonstrably unable to obtain or retain employment.”  38 C.F.R. § 4.132, Diagnostic Code 9405 (1986).
Review of the record reflects that the Veteran received a VA mental health examination in September 1986.  At the conclusion of the examination, the VA examiner opined that the Veteran was capable of employment, even though the medical history spoke against such a finding.  The VA examiner explained that, while the Veteran could work, the Veteran appeared to be deliberately sabotaging his prior employment in order “to remain in a cared for position.”  Further, at the time of the VA mental health examination the Veteran was enrolled in an industrial drafting college course.
(Continued on the next page)
 
As there was at least some evidence that the Veteran could work at the time of the October 17, 1986 RO rating decision, it cannot be said that it was undebatable that the Veteran was demonstrably unable to obtain or retain substantially gainful employment; therefore, the Veteran and representative’s argument that the RO in the October 17, 1986 rating decision should have been granted an increased 100 percent total disability rating appears to simply be a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE.  Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44.  For these reasons, the Board finds there was not CUE in the October 17, 1986 RO rating decision granting a disability rating of 70 percent for the service connected depressive neurosis, and the appeal must be denied.
 
J. PARKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Blowers, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.