Veteranclaims’s Blog

January 22, 2018

Single Judge Application; CUE; sympathetic read; Acciola, 22 Vet.App. at 326-27; Canady, 20 Vet.App. at 402;

Excerpt from decision below:

“In the instant case, it is unclear whether the Board properly identified, and adjudicated, the appellant’s specific allegation of CUE. In its December 12, 2016, decision, the Board construed the appellant’s argument regarding the August 1957 letter as either requesting an earlier effective date for the grant of service connection for cervical spine arthritis, R. at 8, or as evidence submitted
to support his March 2008 increased-rating claim, and thus irrelevant because it fell outside the potential effective-date range provided for in 38 C.F.R. § 3.400(o)(2), R. at 8-9. However, in his appeal to the Court, the appellant identifies the error as the Board’s failure to consider the August 1957 letter from Dr. Smith, who was treating him on behalf of VA, as an informal claim of increased rating, under the version of 38 C.F.R. § 3.157(b)(2) then in effect. Informal Brief (Br.) at 1; Reply Br. at 2. In other words, it appears the appellant believes that (1) the 1957 letter from Dr. Smith, whom he alleges was providing treatment under VA contract, should be considered a record of VA treatment; (2) therefore, under 38 C.F.R. § 3.157(b)(2) (or any similar regulation then in effect) the 1957 letter should have been construed as an informal claim of increase for cervical spine arthritis; (3) that informal claim was never adjudicated and could support the assignment of an effective date prior to April 26, 2007, for the rating increase; and (4) it was CUE for the Board to have failed to consider this in its November 29, 2011, decision.
The Court acknowledges that this interpretation of the appellant’s specific assertion of CUE was not clearly articulated before the Board, but it is not inconsistent with a sympathetic reading of his cumulative correspondence. See Acciola, 22 Vet.App. at 326-27; Canady, 20 Vet.App. at 402. Under these circumstances, and given that the appellant is proceeding pro se, the Court will remand the matter for the Board to determine the precise nature of the appellant’s assertion of CUE in the November 29, 2011, Board decision and to conduct any additional action deemed necessary. See Russell, 3 Vet.App. at 319 (noting the importance of determining “the precise nature” of a CUE claim).”

===========================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-4213
FREDERICK C. FERMIN, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: The pro se appellant, Frederick C. Fermin, appeals a December 12,
2016, Board of Veterans’ Appeals (Board) decision that (1) denied the appellant’s motion to reverse
or revise on the basis of clear and unmistakable error (CUE) those portions of a November 29,
2011, Board decision that increased the disability rating to 20%, but no higher, for cervical spine
arthritis and denied a rating in excess of 20% for lumbar spine arthritis1 but (2) found that it was
CUE that the November 29, 2011, Board decision failed to specify the effective date for the rating
increase to 20% for cervical spine arthritis. Record of Proceedings (R.) at 2-12. Thus, the Board
assigned an effective date of April 26, 2007, but no earlier, for the increased 20% rating for the
appellant’s cervical spine arthritis. R. at 9-12. This appeal is timely, and the Court has jurisdiction
to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
following reasons, the Court will vacate the Board’s decision as to the effective date for the
increased 20% disability rating for cervical spine arthritis and remand the matter for further
proceedings consistent with this decision.
1 The appellant does not challenge the Board’s decision with respect to the lumbar spine, and the Court
therefore considers that matter abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc)
(holding that, where an appellant abandons an issue or claim, the Court will not address it).
2
I. BACKGROUND
The appellant served on active duty in the U.S. Army from March 1941 to September 1945
and from May 1946 to February 1947.2 R. at 3, 5880, 5903, 5927. Service connection for a back
disability, classified as “arthritis, spine,” was in effect, with a noncompensable rating, from at least
as early as February 1947. R. at 555. At some point, his back disability was recharacterized as
“traumatic arthritis of the lumbar and cervical spine” and assigned a single 20% disability rating
from November 13, 1982. R. at 3, 7021.
In an August 2008 rating decision, the regional office (RO) granted separate ratings for the
appellant’s lumbar and cervical spine disabilities, 20% and 10%, respectively, effective March 28,
2008, the date VA received the appellant’s claim for a rating increase. R. at 7017-19. In the
November 29, 2011, Board decision, the Board granted an increased 20% rating for cervical spine
arthritis; no effective date was specified. R. at 3003-17. The Board also referred to the RO, for
adjudication in the first instance, a claim of increased rating for left leg radiculopathy and what
the Board characterized as “the issue of entitlement to an earlier effective date for service
connection for traumatic arthritis of the cervical spine.” R. at 3004. In the December 2011 rating
decision implementing the increased rating for cervical spine arthritis, the RO assigned an effective
date of March 28, 2008, the date the increased-rating claim was received by VA. R. at 2997-98,
3791.
In February 2016, the appellant submitted correspondence to VA that appeared to assert
entitlement to (1) an increased rating for cervical spine arthritis; (2) an effective date in April 2007
for the increased 20% rating for cervical arthritis; and (3) a 100% rating for cervical arthritis,
retroactive to 1957, based on alleged “fraudulent concealment” of an August 1957 letter from Dr.
Smith, a private treatment provider, who treated the appellant under contract from VA. R. at 552.
In correspondence received in June 2016, the appellant filed with the Board a motion to
revise the November 29, 2011, Board decision on the basis of CUE. Supplemental R. at 87. In
his motion, the appellant again cited the August 1957 letter from Dr. Smith. Id. In August 2016,
the Board notified the appellant that his June 2016 motion had been docketed. Id. at 35-36. The
following month, the appellant responded that he “did not file [an] appeal on [the Board] decision
dated November 29, 2011,” because “the statute of limitations [is] tolled” based on the content of
2 The appellant’s DD Forms 214 are not of record; however, the dates of service are not in dispute and are
partially supported by other personnel documents, cited here.
3
Dr. Smith’s August 1957 letter. Id. at 34. In correspondence dated 5 days later, the appellant’s representative before the Board clarified the appellant’s argument as comprising two theories of CUE in the November 29, 2011, Board decision: (1) The Board’s failure to assign a disability rating in excess of 20%, for cervical spine arthritis and (2) the Board’s failure to assign an earlier effective date for the grant of service connection for his spinal arthritis, based on the 1957 letter. Id. at 82.
In the December 12, 2016, Board decision on appeal, the Board described the appellant’s correspondence as “often confusing” and found that his arguments were “best laid out in [the] February 2016 letter submitted to VA.” R. at 7-8. The Board noted that the November 29, 2011, Board decision cited an April 26, 2007, private treatment record in granting the increased rating for cervical spine arthritis “without commenting on the appropriate effective date.” R. at 10.
Because April 26, 2007, is within 1 year prior to the appellant’s March 2007 claim for increased rating, the Board concluded that if it had correctly applied 38 C.F.R. § 3.400(o)(2) at that time,
“the outcome would have been manifestly different and an effective date of April 26, 2007[,] . . .
would have been assigned.” R. at 11. The Board discussed the appellant’s arguments regarding
“fraudulent concealment,” but found that even if such were the case, the matter at issue in the
November 29, 2011, Board decision was the rating to be assigned for cervical spine arthritis from
March 28, 2007, i.e., 1 year prior to the day the increased-rating claim was received, and that
records of the cervical spine disability, and its severity, from decades prior were not pertinent to
that determination. R. at 8-9. This appeal followed.

II. ANALYSIS
A. Effective Date
A prior final Board decision must be reversed or revised where evidence establishes CUE. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-11 (2017). CUE is established when the following conditions are met: First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet.App. 242, 245 (1994). Second, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.” Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc). Finally, the
error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378,
4
1380-81 (Fed. Cir. 1999) (expressly adopting “manifestly changed the outcome” language in Russell). When the Court reviews a Board determination that there was no CUE in a prior final Board decision, the Court’s review is limited to determining whether the Board’s conclusion in that regard is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 38 U.S.C. § 7261(a)(3)(A), and whether it is supported by an adequate “statement of reasons or bases,” 38 U.S.C. § 7104(d)(1). See Eddy v. Brown, 9 Vet.App. 52, 57 (1996).
A motion for revision of a final Board decision based upon CUE must be pled with
specificity setting forth any error of fact or law in the Board decision. See Fugo v. Brown,
6 Vet.App. 40, 44 (1993); 38 C.F.R. § 20.1404(b). “The claimant must provide 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 the result would have been manifestly
different but for the alleged error.'” Livesay v. Principi, 15 Vet.App. 165, 174 (2001) (en banc)
(emphasis in original) (quoting Fugo, 6 Vet.App. at 44).
However, an unrepresented claimant’s CUE motion is to be read sympathetically. See
Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (“VA’s duty to sympathetically read
a veteran’s pro se CUE motion . . . is antecedent to a determination of whether a CUE claim has
been pled with specificity.”). Thus, “a sympathetic reading of a CUE motion requires the Secretary
to fill in omissions and gaps that an unsophisticated claimant may leave in describing his or her
specific dispute of error with the underlying decision.” Acciola v. Peake, 22 Vet.App. 320, 326-
27 (2008); Canady v. Nicholson, 20 Vet.App. 393, 402 (2006) (noting that a manifestly changed
outcome might be “obvious from the context of the pleadings” or “inferred from a sympathetic
reading” of the pro se CUE request); see also Jordan v. Principi, 17 Vet.App. 261, 270-71 (2003)
(holding that an appellant is not bound to the exact words used in a request for revision on the
basis of CUE in a Board decision and may “rephrase and provide additional argument and support
for the same basic CUE argument presented”), aff’d sub nom. Jordan v. Nicholson, 401 F.3d 1296
(Fed. Cir. 2005). While, the Board’s “sympathetic reading of the CUE theory may result in
clarifying modifications,” the Board “cannot adjudicate a CUE theory that is wholly distinct from
that which is presented.” See Canady, 20 Vet.App. at 402.
Whether a motion for revision based on CUE has been presented is a matter of law
reviewed de novo. See Phillips v. Brown, 10 Vet.App. 25, 30 (1997) (“[O]ur review of whether a
CUE claim has been presented will be under the nondeferential de novo standard.”); see also
5
Andrews v. Principi, 18 Vet.App. 177, 182 (2004) (stating that the Court reviews de novo “whether
an appellant, as a matter of law, has presented a valid CUE allegation”), aff’d sub nom. Andrews
v. Nicholson, 421 F.3d at 1283. As with all material conclusions of fact or law, the Board must
provide a statement of the reasons or bases for its determination, adequate to enable an appellant
to understand the precise basis for its decision, as well as to facilitate review in this Court.
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57 (1990).
In the instant case, it is unclear whether the Board properly identified, and adjudicated, the appellant’s specific allegation of CUE. In its December 12, 2016, decision, the Board construed the appellant’s argument regarding the August 1957 letter as either requesting an earlier effective date for the grant of service connection for cervical spine arthritis, R. at 8, or as evidence submitted to support his March 2008 increased-rating claim, and thus irrelevant because it fell outside the potential effective-date range provided for in 38 C.F.R. § 3.400(o)(2), R. at 8-9. However, in his appeal to the Court, the appellant identifies the error as the Board’s failure to consider the August 1957 letter from Dr. Smith, who was treating him on behalf of VA, as an informal claim of increased rating, under the version of 38 C.F.R. § 3.157(b)(2) then in effect. Informal Brief (Br.) at 1; Reply Br. at 2. In other words, it appears the appellant believes that (1) the 1957 letter from Dr. Smith, whom he alleges was providing treatment under VA contract, should be considered a record of VA treatment; (2) therefore, under 38 C.F.R. § 3.157(b)(2) (or any similar regulation then in effect) the 1957 letter should have been construed as an informal claim of increase for cervical spine arthritis; (3) that informal claim was never adjudicated and could support the assignment of an effective date prior to April 26, 2007, for the rating increase; and (4) it was CUE for the Board to have failed to consider this in its November 29, 2011, decision.
The Court acknowledges that this interpretation of the appellant’s specific assertion of CUE was not clearly articulated before the Board, but it is not inconsistent with a sympathetic reading of his cumulative correspondence. See Acciola, 22 Vet.App. at 326-27; Canady, 20 Vet.App. at 402. Under these circumstances, and given that the appellant is proceeding pro se, the Court will remand the matter for the Board to determine the precise nature of the appellant’s assertion of CUE in the November 29, 2011, Board decision and to conduct any additional action deemed necessary. See Russell, 3 Vet.App. at 319 (noting the importance of determining “the precise nature” of a CUE claim).
6
In pursuing the matter on remand, the appellant is free to submit additional evidence and
argument on the remanded matter, and the Board is required to consider any such relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the
Board must consider additional evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held
that “[a] remand is meant to entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious treatment” of
claims remanded by the Court).
B. Other Arguments
Although the appellant stated that he was asserting CUE with that portion of the Board’s
November 29, 2011, decision that declined to award a rating in excess of 20% for cervical spine
arthritis, his arguments pertain solely to the effective date for the increased rating. Appellant’s Br.
at 1-2; Reply Br. at 2. Because the appellant failed to assert error as to the rating assigned for
cervical spine arthritis, the Court will consider that aspect of the November 29, 2011, Board
decision to have been abandoned on appeal. See Pederson, 27 Vet.App. at 285; Cacciola v.
Gibson, 27 Vet.App. 45, 57 (2015) (holding that, when an appellant expressly abandons an
appealed issue or declines to present arguments as to that issue, the appellant relinquishes the right
to judicial review of that issue, and the Court will not decide it); Grivois v. Brown, 6 Vet.App. 136,
138 (1994) (holding that issues or claims not argued on appeal are considered abandoned); see
also Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (the Court cannot manufacture arguments
on behalf of appellants, represented or otherwise).
Additionally, in his amended informal brief, the appellant presents argument regarding the
rating assigned for his service-connected left leg radiculopathy. Amended Informal Br. at 1.
However, that issue was not addressed in the December 2016 Board decision, and it was referred
to the RO, i.e., not adjudicated, in the underlying November 2011 Board decision. R. at 3-12,
3004.3 Therefore, the appeal as to that matter will be dismissed for lack of jurisdiction. See Evans
v. Shinseki, 25 Vet.App. 7, 10 (2011).
3 The appellant does not present any coherent argument that the Board’s decision to refer that matter was
CUE. See Coker, 19 Vet.App. at 442.
7
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
record, that part of the Board’s December 12, 2016, decision that denied an effective date prior to
April 26, 2007, based on CUE in the November 29, 2011, Board decision, is VACATED and the
matter is REMANDED for further proceedings consistent with this decision. The appeal is
otherwise DISMISSED.
DATED: January 19, 2018
Copies to:
Frederick C. Fermin
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

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

Powered by WordPress.com.