Citation Nr: 22042160 Decision Date: 07/25/22 Archive Date: 07/25/22 DOCKET NO. 20-30 191 DATE: July 25, 2022 ORDER The motion for reversal or revision of the December 21, 2016, Board of Veterans' Appeals (Board) decision that, in pertinent part, denied a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI), but did not adjudicate whether a separate compensable rating was warranted for the TBI, is denied. FINDINGS OF FACT 1. In a final decision dated December 21, 2016, the Board, in pertinent part, denied a rating in excess of 70 percent for PTSD with TBI, but did not adjudicate whether a separate compensable rating was warranted for the TBI. The moving party was provided with a copy of the decision and did not appeal the Board decision to the United States Court of Appeals for Veterans Claims (Court). 2. The moving party has not alleged an error of fact or law in the December 21, 2016, Board decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different, but for the error. CONCLUSION OF LAW Clear and unmistakable error (CUE) in the Board's December 21, 2016, decision that denied a rating in excess of 70 percent for PTSD with TBI, but did not adjudicate whether a separate compensable rating was warranted for the TBI, has not been established. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, had active service from September 1983 to July 1986. This matter is currently before the Board on the moving party's September 2019 motion for revision or reversal on the grounds of CUE in the December 21, 2016, Board decision that denied a rating in excess of 70 percent for PTSD with TBI, but did not adjudicate whether a separate compensable rating was warranted for the TBI. The Veteran testified at a September 2019 Board Central Office hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In a March 2021 decision, the Board denied the moving party's September 2019 motion. The Veteran appealed that decision to the Court. In December 2021, the Court issued an order granting the parties' December 2021 Joint Motion for Remand (JMR), thereby vacating the March 2021 Board decision and remanding this matter to the Board for action consistent with the JMR. Whether there was CUE in the December 21, 2016 Board decision that denied a rating in excess of 70 percent for PTSD with TBI, but did not adjudicate whether a separate compensable rating was warranted for the TBI. Applicable Caselaw, Statutory, and Regulatory Provisions A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE 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 manifestly 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 this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. 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. Part 20. 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. 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. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 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 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. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either 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 that 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass 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. See 38 C.F.R. § 20.1403(e). 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. George v. McDonough, 142 S. Ct. 1953 (2022); 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. Id.; 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"). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Discussion The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). In the present case, the moving party alleges CUE in a December 21, 2016, Board decision that denied a rating in excess of 70 percent for PTSD with TBI, but did not adjudicate whether a separate compensable rating was warranted for the TBI. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). The pertinent laws and regulations at the time of this decision were similar, if not essentially the same, as they are now. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The Veteran's PTSD is rated under the general rating formula for rating mental disorders pursuant to 38 C.F.R. § 4.130, DC 9411. The rating criteria specifically contemplate symptoms such as continuous medication, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory loss, impairment of affect, impairment of speech, difficulty in understanding complex commands, impaired judgment and thinking, suicidal ideation; obsessional rituals, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, delusions and/or hallucinations. Under DC 8045, applicable to residuals of TBI, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Adjudicators are to rate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to rate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, they are to separately rate any residual with a distinct diagnosis that may be rated under another Diagnostic Code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Adjudicators are to rate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Here, the Veteran has a diagnosis of a mental disorder; therefore, such symptoms are evaluated separately under 38 C.F.R. § 4.130, DC 9433. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In the September 2019 CUE motion, the moving party raised multiple allegations of legal and factual errors in the December 21, 2016, Board decision. The moving party argues that, had such errors not been committed, the December 21, 2016, Board decision manifestly would have granted a separate compensable rating for residuals of a TBI. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). Specifically, the moving party asserts that the Board in its December 21, 2016, decision committed legal error by not obtaining and reviewing all of the Veteran's relevant service and VA treatment records, including inpatient treatment records from Fort Knox Army Hospital and outpatient treatment records from the VA medical center in Iowa City. Thus, the Veteran is essentially arguing that VA failed in its duty to assist. To that extent, the Board notes that, as discussed above, VA's failure in the duty to assist cannot constitute CUE. 38 C.F.R. § 20.1403(d); Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). In addition, the Veteran contends that the Board in the December 21, 2016, decision erred in not separately rating the Veteran's service-connected PTSD and TBI residuals. The moving party specified numerous conditions which he alleges are residuals of the TBI and should have been separately rated such as: Headaches and migraines Unexplained fevers Difficulty eating both because of dysphagia and extensive oral damage Difficulty speaking due to missing teeth, mandible and maxilla (only rated my mandible) Degraded vision/cataracts Chronic fatigue Loss of hearing Loss of touch I cannot use a touch screen at all Attention and concentration deficits Memory Loss Decreased ability to process and understand information Lack of judgment or reasoning Decreased ability to problem solve and make decisions Communication problems Decreased ability to plan, organize and assemble Anxiety Agitation Frustration Impulsiveness Repetitiveness Depression Regression Inability to control impulsive behavior and emotions Dementia diagnosed within 15 years following moderate or severe TBI CTE multiple head injuries Seizure disorder Hormone deficiency Deviated Septum Hypertension Portal Hypertension (totally separate diagnosis than hypertension) Renal Failure secondary to Portal Hypertension End Stage Liver Disease secondary to Tylenol overdose/alcohol abuse secondary to PTSD Reduced Chin Sensation I literally do not have a chin. This is no the accurate diagnosis Loss of Sense of Taste Loss of sense of Smell Dry Mouth Facial Scars there are more scars besides around my lip. I have facial numbness Body scars Bilateral knee injuries Bilateral foot injuries Vertigo Urinary and Fecal Incontinence Sleep Apnea I have had several sleep studies and sinus injuries Fibromyalgia Psoriatic Arthritis secondary to Guttate Psoriasis Guttate Psoriasis I believe due to exposure to Halon, Agent Orange, radiation Erectile Dysfunction secondary to TBI/PTSD/Sertraline side effect Bilateral Shoulder Condition with atrophy I literally have kyphosis Cervical Strain with kyphosis and atrophy At the time of the December 2016 Board decision, the Veteran was service-connected for the following disabilities that held separate ratings: PTSD with TBI; mid-thoracic muscle strain, healed anterior mandible fracture with secondary bone loss, headaches, deviated nasal septum with left and right nasal valving, hypertension, reduced chin sensation, loss of sense of taste, facial scars above and below the lip, loss of sense of smell, and dry mouth associated with PTSD with TBI. The AOJ also coded as nonservice-connected the following disabilities: psoriatic arthritis associated with guttate psoriasis, bilateral shoulder condition with atrophy associated with encephalopathy (also claimed as hepatic failures and short term memory disorder), left index finger injury, right knee injury, left knee injury, bilateral foot and ankle condition, rib fractures associated with PTSD and TBI, glaucoma associated with guttate psoriasis, chronic conjunctivitis, corneal scarring, vertigo, perforated tympanic membranes, sinus infections, dyspnea, sleep apnea, heart condition with chest pain, main portal vein clot, chronic venous insufficiency associated with superficial vein thrombophlebitis associated with PTSD and TBI, deep vein thrombosis, throat varices, peritoneal adhesions, portal gastritis, cirrhosis with ascites, abdominal swelling, fecal incontinence, hemorrhoids, acute pancreatitis, gallbladder condition, erectile dysfunction, urinary incontinence, renal failure, urinary tract infections, gynecomastia associated with cirrhosis with ascites, pancytopenia, a spleen condition, aplastic anemia, post-operative warts, guttate psoriasis, left shoulder and underarm lipoma, cold burns, black eyes, loss of hair, autoimmune disorder, serotonin syndrome, petit mal seizures, encephalopathy and major depressive disorder. In this context, the Board in its December 21, 2016, decision specifically cited the April 2014 VA PTSD examination report as indicating that the Veteran had PTSD and a TBI, but that it was not possible to differentiate which symptoms were attributable to each diagnosis. The April 2014 examination report listed TBI symptoms of loss of memory, insomnia and irritability which, as discussed above, are symptoms specifically identified in the mental disorder evaluation criteria. Regardless of whether the Board committed legal error in not specifically adjudicating whether separate ratings were warranted for the Veteran's service-connected PTSD and TBI, it is not clear that the outcome would have been manifestly different, as there was evidence of record, which was specifically described in the December 21, 2016, Board decision, that weighed against the assignment of a separate ratings for the Veteran's service-connected PTSD and TBI. In this motion, the Veteran lists some TBI residuals which were separately rated apart from TBI, and a multitude of other disorders which were specifically adjudicated as nonservice-connected in prior rating actions. The evidence of record at the time of the December 21, 2016, Board decision included the April 2014 examination report listing TBI symptoms of loss of memory, insomnia and irritability which the examiner could not differentiate as being due to PTSD and a TBI. It was not CUE for the Board to exclusively evaluate such symptoms under the mental disorders criteria. The Veteran's CUE allegations involve a multitude of medical conditions which, at the time of the Board's decision, either had been previously denied service connection or were not medically shown as a TBI residual. The Veteran has not identified any outcome determinative error as to how any TBI residual could have resulted in a different rating than already assigned at the time of the December 2016 Board decision. Furthermore, the existence of such evidence both for and against a separate rating for the Veteran's TBI supports a finding that the moving party's argument is essentially a disagreement regarding how the Board weighed the evidence in the December 21, 2016, decision. To that extent, he is reminded that disagreement as to how the facts were weighed or evaluated does not constitute CUE. See 38 C.F.R. § 20.1403(d)(3). Review of the record reflects no other pled CUE arguments raised by the moving party. For these reasons, the Board finds there was no CUE in the December 21, 2016, Board decision that denied a rating in excess of 70 percent for PTSD with TBI, but did not adjudicate whether a separate compensable rating was warranted for the TBI. Based on the foregoing, the moving party has failed to show that the December 21, 2016, Board decision contains an error, of fact or of law, that compels the conclusion, to which reasonable minds could not differ, that the results would have bene manifestly different but for the error. Hence, the moving party's CUE motion must be denied. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.