tdiu 20 Years Retro

[Berta]

I just posted this for Judy but it might well help someone else out there- I posted this before but it pays to post it again-

It is definitely one of my favorite CUE claims.

Citation Nr: 0319228

Decision Date: 08/06/03 Archive Date: 08/13/03

DOCKET NO. 99-18 371A ) DATE

)

)

"THE ISSUE

Whether a May 1983 decision of the Board of Veterans' Appeal

which denied entitlement to a total disability rating based

on individual unemployability due to service-connected

disability (TDIU) should be revised or reversed due to clear

and unmistakable error (CUE).

REPRESENTATION

Moving party represented by: The American Legion

ATTORNEY FOR THE BOARD

John Z. Jones, Counsel

INTRODUCTION

The veteran served on active duty from June 1968 to December

1969.

The veteran has challenged on the basis of claimed CUE a

decision of the Board of Veterans' Appeals (the Board) dated

May 20, 1983. In that decision, the Board denied what was

characterized as a claim of entitlement to CUE.

The veteran's motion for CUE stems from a letter dated August

13, 1999 from the veteran's local accredited representative

to the Chairman of the Board.

In the August 1999 letter, the veteran's representative

requested that the case be reconsidered due to CUE "in the

VA rating decision of 24 March, 1981 . . . ." The Board

notes that to the extent that the veteran is attempting to

challenge the March 1981 rating decision on the basis of CUE,

that decision was affirmed by the Board in May 1983. When a

determination of the Regional Office (RO) is appealed to and

then affirmed by the Board, the RO's determination is

subsumed by the Board's decision. See 38 U.S.C.A. § 7104(a)

(West 1991); 38 C.F.R. § 20.1104 (2002). Thus, as a matter

of law, no claim of CUE can exist with respect to the March

1981 RO decision. See Duran v. Brown, 7 Vet. App. 216, 224

(1994); accord, Johnston v. West, 11 Vet. App. 240, 241

(1998).

Although the August 1999 letter from the veteran's local

representative dwelt mainly with matters not germane to a

Board CUE claim, there was sufficient reference to the

Board's May 1983 decision to constitute a CUE motion under

38 C.F.R. § 20.1404, and the Board has treated the letter as

such.

The Board observes in passing that the Office Manager of the

representative's Appeals and Special Claims Unit in

Washington, D.C., perhaps recognizing deficiencies in the

August 1999 CUE motion, requested in June 2003 that the file

be sent to the American Legion so that additional argument

could be made to the Board. In light of the favorable

outcome of this decision to the veteran, the Board believes

that additional argument is unnecessary.

FINDINGS OF FACT

1. By a rating action in February 1978, the RO granted

entitlement to TDIU effective January 10, 1978.

2. In March 1981, the RO, pursuant to DVB Circular 21-80-7,

terminated entitlement to TDIU effective June 30, 1981. The

veteran perfected an appeal of that decision.

3. In a decision dated May 20, 1983, the Board denied

entitlement to TDIU.

4. The Board, in its May 1983 decision, failed to apply

38 C.F.R. § 3.343 to the termination of the veteran's TDIU

rating.

CONCLUSION OF LAW

The motion for revision of the May 20, 1983 Board decision

that denied TDIU is granted. 38 U.S.C.A. § 7111 (West Supp.

2002); 38 C.F.R. §§ 20.1400 - 20.1411 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran is seeking revision of a Board decision dated May

20, 1983 based on his contention that such decision contained

CUE.

In the interest of clarity, after disposing of certain

initial matters the Board will review the factual background

of this case; briefly discuss the relevant law and VA

regulations pertaining to Board CUE; and then analyze the

veteran's contentions and render a decision.

The VCAA

On November 9, 2000, the President signed into law the

Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.

106-475, 114 Stat. 2096 (2000) [codified as amended at 38

U.S.C.A. § 5100 et seq.]. The VCAA includes an enhanced duty

on the part of VA to notify claimants as to the information

and evidence necessary to substantiate claims for VA

benefits. The VCAA also redefines the obligations of VA with

respect to its duty to assist claimants in the development of

their claims. Regulations implementing the VCAA have been

enacted. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

The Board must make a determination as to the applicability

of the various provisions of the VCAA to a particular claim.

See Holliday v. Principi, 14 Vet. App. 280 (2001).

The VCAA is generally applicable to all claims filed on or

after the date of enactment, November 9, 2000, or filed

before the date of enactment and not yet final as of that

date. However, in Livesay v. Principi, 15 Vet. App. 165

(2001), the United States Court of Appeals for Veterans

Claims (Court) stated that "there is nothing in the text or

the legislative history of VCAA to indicate that VA's duties

to assist and notify are now, for the first time, applicable

to CUE motions."

In essence, the Court in Livesay continued to hold that the

VCAA is potentially applicable to all pending claims, as it

had held in Holliday. However, the Court further indicated

that CUE claims are not conventional appeals, but rather are

requests for revision of previous decisions. A claim of CUE

it is not by itself a claim for benefits. Thus, CUE is

fundamentally different from any other kind of action in the

VA adjudicative process. A litigant alleging CUE is not

pursuing a claim for benefits, but rather is collaterally

attacking a final decision. Thus, a "claimant," as defined

by 38 U.S.C.A. § 5100 (West Supp. 2002), cannot encompass a

person seeking a revision of a final decision based upon CUE.

As a consequence, VA's duties to notify and assist contained

in the VCAA are not applicable to CUE motions. See also 38

C.F.R. § 20.1411© and (d) (2002).

Based on the Court's precedential decision in Livesay, the

Board concludes that the moving party's CUE claim is not

subject to the provisions of the VCAA. As noted above in the

law and regulations section, a CUE claim must be viewed

exclusively in light of evidence which was of record at the

time the decision was made, in this case May 20, 1983. See

38 C.F.R. § 20.1403 (2002). Therefore, there is no

additional evidence that must to be obtained by the Board.

Factual Background

In a February 1970 rating decision, service connection was

granted for below the left knee amputation; a 100 percent

convalescent rating was assigned from December 1969. Service

connection was also granted for fragment wound of the right

leg, evaluated as noncompensably disabling. In a June 1970

decision, the RO reduced the 100 percent rating to 40 percent

for the veteran's service-connected below the left knee

amputation. The RO also increased the rating for fragment

wound of the right leg to 20 percent.

In a February 1978 rating decision, the RO granted

entitlement to TDIU effective January 10, 1978. The grant

was based on the veteran's total 60 percent evaluation for

below the left knee amputation and a shell fragment wound of

the right leg.

In a March 1981 rating decision, following a VA orthopedic

examination and social and industrial survey in January 1981,

the RO terminated entitlement to TDIU effective June 30,

1981. This termination was pursuant to DVB Circular 21-80-7,

"Review of Individual Unemployability Cases". By this

circular, dated in September 1980, ROs were directed to

review cases of veterans who were in receipt of compensation,

were rated unemployable, and were under the age of 60 and

would not obtain the age of 60 in 1980. The termination of

the TDIU rating was based on the review precipitated by this

circular. The veteran perfected an appeal of the RO's

decision.

In the May 20, 1983 decision here under review, although

acknowledging that TDIU had been awarded by the RO and the

award subsequently terminated, the Board characterized the

issue as one of entitlement to TDIU. The Board determined

that additional examination of the veteran was not necessary

and that recent medical evidence of record provided a

sufficiently clear and comprehensive picture of the veteran's

current condition. The RO denied entitlement to TDIU.

Relevant Law and Regulations

Board CUE

A Board decision is subject to revision on the grounds of CUE

and must be reversed or revised if evidence establishes such

error. 38 U.S.C.A. § 7111(a) (West Supp. 2002).

The Board has original jurisdiction to determine whether CUE

exists in a prior final Board decision. Such review may be

initiated by the Board, on its own motion, or by a party to

that decision. 38 C.F.R. § 20.1400 (2002). Motions for

review of prior Board decisions on the grounds of CUE are

adjudicated pursuant to the Board's Rules of Practice, 38

C.F.R. §§ 20.1400-1411 (2002). Pursuant to § 20.1404(, the

motion alleging CUE in a prior Board decision must set forth

clearly and specifically the alleged clear and unmistakable

error, 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.

Non-specific allegations of failure to follow regulations or

failure to give due process, or any other general, non-

specific allegations of error, are insufficient to satisfy

the requirement of the previous sentence. Motions that fail

to comply with the requirements set forth in this paragraph

shall be denied. 38 C.F.R. § 20.1404(:o (2002).

Rule 1403, which is found at 38 C.F.R. § 20.1403 (2002),

relates to what constitutes CUE and what does not, and

provides as follows:

(a) General. Clear and unmistakable error 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. 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.

(B) Record to be reviewed - (1) General. Review for clear and

unmistakable error in a prior Board decision must be based on

the record and the law that existed when that decision was

made.

© Errors that constitute clear and unmistakable error. To

warrant revision of a Board decision on the grounds of clear

and unmistakable error, there must have been an error in the

Board's adjudication of the appeal which, 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 clear

and unmistakable.

(d) Examples of situations that are not clear and

unmistakable error - (1) Changed diagnosis. A new medical

diagnosis that "corrects" an earlier diagnosis considered in

a Board decision. (2) Duty to assist. The Secretary's

failure to fulfill the duty to assist. (3) Evaluation of

evidence. A disagreement as to how the facts were weighed or

evaluated.

(e) Change in interpretation. Clear and unmistakable error

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.

The Board further notes that with respect to the final

provisions of the regulations pertaining to the adjudication

of motions for revision or reversal of prior Board decisions

on the grounds of CUE, the definition of CUE was based on

prior rulings of the Court. More specifically, it was

observed that Congress intended that the VA adopt the Court's

interpretation of the term "CUE." Indeed, as was discussed

in the notice of proposed rulemaking, 63 Fed. Reg. 27534,

27536 (1998), the sponsor of the bill that became the law

specifically noted that the bill would "not alter the

standard for evaluation of claims of CUE." 143 Cong. Rec.

1567, 1568 (daily ed. April 16, 1997) [remarks of Rep. Evans,

sponsor of H.R. 1090, in connection with House passage].

Therefore, the Board is permitted to seek guidance as to the

existence of CUE in prior Board decisions based on years of

prior Court decisions regarding CUE, such as Fugo v. Brown, 6

Vet. App. 40 (1993).

In addition, the Board notes that for decisions issued on or

after July 21, 1992, the record that existed when that

decision was made includes relevant documents possessed by

the Department of Veterans Affairs not later than 90 days

before such record was transferred to the Board for review in

reaching that decision, provided that the documents could

reasonably be expected to be part of the record. 38 C.F.R.

§ 20.1403(B) (2002); see also Bell v. Derwinski, 2 Vet. App.

611 (1992). In this case, since the May 1983 Board decision

in question was made prior to July 21, 1992, this provision

does not apply. See Damrel v. Brown, 6 Vet. App. 242, 246

(1994).

Pertinent law and regulations in effect at the time of the

1983 Board decision

Only the law as it existed at the time of the Board's

decision may be considered. See 38 C.F.R. § 20.1403(B)

(2002). In other words, the Board cannot apply the benefit

of hindsight to its evaluation of the May 1983 decision in

determining whether CUE existed. Cf. Russell v. Principi, 3

Vet. App. 310, 313-14 (1992).

The regulations concerning the continuance of total

disability ratings which existed in May 1983 did not vary

much from those in effect today. In reducing a rating of 100

percent service-connected disability based on individual

unemployability, the provisions of § 3.105(e) were for

application; the regulation indicated that caution was to be

exercised in determining that actual employability was

established by clear and convincing evidence. When in such a

case the veteran was undergoing vocational rehabilitation,

education or training the rating would not be reduced by

reason thereof unless there was received evidence of marked

improvement or recovery in physical or mental conditions or

of employment progress, income earned, and prospects of

economic rehabilitation, which demonstrated affirmatively the

veteran's capacity to pursue the vocation or occupation for

which the training was intended to qualify him (or her), or

unless the physical or mental demanded of the course were

obviously incompatible with total disability. 38 C.F.R.

§ 3.343© (1982).

38 C.F.R. § 3.344© (1982) provided that, if a rating had

been in effect for five years or more, the provisions of 38

C.F.R. § 3.344(a) must be complied with in any rating

reduction. The latter provision required that there be

material improvement in the disability before there was any

rating reduction.

Analysis

The regulation requires that Board CUE claims be pled with

specificity. See 38 C.F.R. § 20.1404(B) (2002). In this

case, the August 1999 CUE motion from the veteran's local

representative, although incorrectly focusing more on actions

taken by the RO than on the Board's decision, in essence

maintains that the May 1983 Board decision contained CUE, in

part, because the issue adjudicated by the Board was

entitlement to TDIU instead of whether the RO's termination

of the veteran's TDIU was proper.

The record shows that the veteran perfected an appeal as to

the March 1981 rating decision which terminated his

entitlement to TDIU. The 100 percent rating was in effect

from January 1978 to June 1981, less than 5 years, and the

provisions of 38 C.F.R. § 3.344, pertaining to stabilization

of disability ratings, did not apply. See 38 C.F.R.

§ 3.344© (1982). However, it is apparent from a review of

the 1983 Board decision that there was failure to consider

the provisions of 38 C.F.R. § 3.343(a) as they affected the

veteran's case. As noted above, the veteran's appeal stemmed

from a rating decision terminating entitlement to TDIU and

not one which denied a grant of TDIU. This distinction is

important. The error in the May 1983 decision was that the

Board did not address the issue before it as a termination of

a TDIU rating. Rather, it characterized the appealed issue

as entitlement to a TDIU rating. Although the symptoms

manifested by the veteran on the January 1981 VA examination

and social and industrial survey might not have been as

pervasive as those which he initially exhibited, VA

adjudicators can not simply rate the disability as though it

was a new claim. Rather, 38 C.F.R. § 3.343 makes the

requirements for reduction from a total rating more stringent

than those for an initial award. Reduction requires

"material improvement", which by definition requires that the

veteran attain improvement under the ordinary conditions of

life, i.e., while working or actively seeking work.

The Board, in its 1983 decision, referred to the termination

of TDIU once, on page 2, as a matter of procedural history.

There was otherwise no recognition of the legal significance

of such termination. In treating the veteran's claim as one

for establishment of TDIU, the Board applied an incurred

standard of review to the veteran's appeal. In particular,

the Board failed to apply the provisions of 38 C.F.R.

§ 3.343. The Board failed to demonstrate that actual

employability was established by clear and convincing

evidence prior to the termination of the TDIU rating. In

effect, the Board improperly reversed the standard of proof

by requiring the veteran to prove entitlement to a TDIU

rating. This is the type of error 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. Accordingly,

for the foregoing reasons and bases it is concluded that CUE

was committed as a result of misapplication of the

regulations in effect at the time of the Board's 1983

decision.

ORDER

The May 20, 1983 decision by the Board which denied

entitlement to TDIU was based on CUE. The Board's May 20,

2003 decision is accordingly reversed; TDIU is restored.

____________________________________________

BARRY F. BOHAN

Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE: We have attached a VA Form 4597B that tells

you what steps you can take if you disagree with our

decision. We are in the process of updating the form to

reflect changes in the law effective on December 27, 2001.

See the Veterans Education and Benefits Expansion Act of

2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the

meanwhile, please note these important corrections to the

advice in the form:

? In the section entitled "Appeal to the United States

Court of Appeals for Veterans Claims," you are no

longer required to file a copy of your Notice of Appeal

with VA's General Counsel.

? In the section entitled "Representation before VA,"

you no longer need to have filed a "notice of

disagreement ... that led to the decision the Board has

just reviewed for CUE ... on or after November 18, 1988"

as a condition for an attorney-at-law or a VA accredited

agent to charge you a fee for representing you."

[Pete53]

MT Skull and Kimmy who used to post on Hadit won a claim that had 23 years of retro. Kimmy hired a Lawyer to handle the claim for MT on the old third party rule that the VA got rid of soon after.

[Done wit this]

This also explains in greater detail the CUE. It could be usefull for anyones education on how the CUE is used . Copy and paste keep it for review. I sit and read posts and become a little wiser every day.

Macool