Veteranclaims’s Blog

January 4, 2019

Simon v. Wilkie, No. 17-1361 (Argued October 30, 20181 Decided December 20, 2018); CUE; 38 C.F.R § 3.344 (1974); rating reduction;

Excerpt from decision below:

” To decide this appeal, the Court must consider the meaning of 38 C.F.R § 3.344 (1974), a regulation providing that when an examination shows improvement in a claimant’s disability, VA must “handle [the] case[] . . . so as to produce the greatest degree of stability of disability evaluations.”4 􀹠is regulation provides additional procedures that VA must follow before reducing a veteran’s disability rating. When this heightened burden applies, the rating is subject to reduction becomes entitled to a form of “heightened procedural protections.” But the regulation, and consequently these protections, only apply “to ratings which have continued for long periods at
the same level (5 years or more).”5

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

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1361
RICHARD M. SIMON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued October 30, 20181 Decided December 20, 2018)
Christian A. McTarnaghan with whom Amy F. Odom, both of Providence, Rhode Island, was on the brief for the appellant.
Michael G. Imber, with whom Meghan Flanz, Interim General Counsel; Mary Ann Flynn, Chief Counsel; and Edward V. Cassidy, Jr., Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
Before DAVIS, Chief Judge, and ALLEN and FALVEY, Judges.

ALLEN, Judge: 􀹠e appellant Richard M. Simon served the Nation honorably in the
United States Marine Corps. In this appeal, which is timely and over which the Court has
jurisdiction,2 he challenges a May 1, 2017, Board of Veterans’ Appeals (Board) decision that found no clear and unmistakable error (CUE) in a September 3, 1974, regional office (RO) rating decision that reduced his disability rating for PTSD from 30% to 10% based on a single examination
suggesting that his condition had improved. 3 He now attacks the 1974 decision on a collateral basis, arguing that VA committed CUE because it applied the law concerning rating reductions incorrectly.
1 􀹠e Court held oral argument in this matter at the Tampa Law Center of Stetson University College of Law
in Tampa, Florida. We thank both Stetson and Florida’s Second District Court of Appeal, whose courtroom we used,
for their hospitality.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
3 See Record (R.) at 2–36 (VA rated the appellant’s disability as “anxiety reaction” in the rating decision that is now under collateral attack. VA later characterized his condition as “posttraumatic stress disorder.” Because both ratings refer to the same disability, and for the sake of clarity, the Court will refer to the appellant’s disability only as “PTSD.”)
2
To decide this appeal, the Court must consider the meaning of 38 C.F.R § 3.344 (1974), a regulation providing that when an examination shows improvement in a claimant’s disability, VA must “handle [the] case[] . . . so as to produce the greatest degree of stability of disability evaluations.”4 􀹠is regulation provides additional procedures that VA must follow before reducing a veteran’s disability rating. When this heightened burden applies, the rating is subject to reduction becomes entitled to a form of “heightened procedural protections.” But the regulation, and consequently these protections, only apply “to ratings which have continued for long periods at
the same level (5 years or more).”5
􀹠e principal question before the Court is the scope of this provision’s application. 􀹠e matter was referred to a panel of the Court, with oral argument, to decide whether the Board properly applied 38 C.F.R. § 3.344 when it found no CUE in the 1974
decision. As we explain, the Board was correct that § 3.344’s rating reduction protections did not apply to the appellant in 1974. 􀹠erefore, we will affirm the Board decision on appeal.
I. OPERATIVE FACTS AND PROCEDURAL HISTORY
􀹠e appellant served in the United States Marine Corps from January 16, 1967, to February
29, 1968. He was stationed in the Vietnam demilitarized zone and engaged in fierce combat with
the enemy. 􀹠e appellant reports that he endured frequent mortar bombardment, witnessed the
death of several close friends, and killed an enemy soldier by stabbing him to death.6 Because of
these experiences, the appellant was hospitalized for the latter part of his service. In January 1968,
a Physical Evaluation Board determined that appellant was unable to perform his duties because
of his condition and recommended separation from the U.S. Marine Corps.
In a March 1968 RO rating decision, VA granted the appellant service connection for
PTSD, effective March 1, 1968, the date of the appellant’s discharge, with an initial rating of 50%.7
A few months later, in June 1968, VA attempted to schedule the appellant for an initial postservice
4 38 C.F.R. § 3.344(a) (1974).
5 38 C.F.R. § 3.344(c).
6 R. at 2026.
7 R. at 465.
3
PTSD evaluation. However, he informed VA that he was living and working out of the area and
could not undergo an examination. VA granted him an extension.8
In July 1969, more than a year after his separation, the appellant underwent his initial PTSD
examination.9 􀹠e examiner noted that the appellant was “moderate in the neurotic sphere,” but
that his “stresses [were severe] in the past.” 10 􀹠e appellant told the examiner that he was
“functioning satisfactorily at his job” and that, since experiencing his stressors, he had “gradually
began to feel somewhat better.”11 Accordingly, in an October 1969 rating decision, VA reduced the
appellant’s PTSD rating from 50% to 30%, stating that the appellant’s disability appears to be
improving.12 􀹠e appellant did not appeal this determination and it became final.
Less than 5 years later, in August 1974, the appellant underwent another VA PTSD
examination, during which the examiner remarked that the appellant “is functioning rather
adequately.”13 􀹠e examiner noted that the appellant was not satisfied with his job because it was
not challenging enough given the marketing degree he earned after his separation.14 Based on this
new evidence, the RO decided that “the current examination shows a good industrial and social
adjustment” and reduced the appellant’s PTSD rating from 30% to 10%, effective December 1,
1974.15 􀹠e appellant did not appeal this decision either and it too became final.
In August 2014, more than 40 years after the RO reduced the appellant’s rating, he asked
VA to revise the 1974 decision on the basis of CUE.16 He argued that because he had a PTSD rating
of 50% from 1968 to 1970 and a rating of 30% from 1970 to 1974, he had maintained a rating of
at least 30% for longer than the 5-year period outlined in the regulation. He claimed that when VA
8 R. at 2036–37, 2046.
9 R. at 2022–31.
10 R. at 2028–30.
11 R. at 2028.
12 R. at 2016–17.
13 R. at 1938.
14 Id.
15 R. at 1934.
16 R. at 831.
4
reduced his rating below 30% in the 1974 decision, it committed CUE by not affording him the
procedural protections provided in § 3.344.17
In response, the RO issued an April 2015 decision in which it concluded that no revision
was warranted.18 􀹠e appellant filed a May 2015 Notice of Disagreement (NOD), continuing to
argue that VA did not employ the heightened rating-reduction procedures to which he was entitled
under § 3.344.19 After VA issued a Statement of the Case (SOC) continuing the denial, the appellant
perfected his appeal to the Board. 􀹠en, on May 1, 2017, the Board issued a decision finding no
CUE in the 1974 rating decision. In reaching its conclusion, the Board determined that 38 C.F.R.
§ 3.344 did not apply to the appellant’s PTSD rating in 1974 because that rating “did not continue
at the same level for five years” and, therefore, “had not become stabilized.” 20 􀹠is appeal
followed.
II. ANALYSIS
􀹠e appellant did not challenge the 1974 RO rating decision reducing his PTSD rating from
30% to 10% within the time permitted to file a direct appeal. As a general matter, when VA renders
a decision that is not appealed within the statutory period, that decision becomes final.21 􀹠ere are
limited avenues by which a claimant may revisit a final decision. For example, he or she may
reopen such a claim by submitting new and material evidence.22 And, as appellant has done here,
a claimant may move to revise such a final decision on the basis that it contains CUE.23 To address
the appellant’s appeal, we first describe the legal landscape concerning CUE. 􀹠en we turn to how
these principles apply in this appeal.
17 Id.
18 R. at 587.
19 R. at 489.
20 R. at 33.
21 See 38 U.S.C. §§ 7252, 7266(a)(1).
22 38 C.F.R. § 3.156(a) (2018).
23 38 U.S.C. §§ 5109A(a), 7111(a); see DiCarlo v. Nicholson, 20 Vet.App. 52, 56 (2006); 38 C.F.R.
§§ 3.105(a) (2018), 20.1400–1411 (2018).
5
A. 􀭡e CUE Analysis Framework
When a final decision contains CUE, that decision may be reversed or revised, resulting in
correction of the error effective the date of its commission.24 CUE is established when (1) either
the correct facts as they were known at the time were not before the adjudicator, the adjudicator
made an erroneous factual finding, or the statutory or regulatory provisions extant at the time were
incorrectly applied; (2) the alleged error is “undebatable,” rather than a mere “disagreement as to
how the facts were weighed or evaluated;” and (3) the error “manifestly changed the outcome” of
the decision.25
It is not easy to establish CUE in a final decision. We have held that an error is
“undebatable” when “reasonable minds could only conclude that the original decision was fatally
flawed at the time it was made.”26 In other words, “CUE is a very specific and rare 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 results would have been manifestly different but
for the error.”27
When assessing the Board’s CUE determination, the Court “cannot conduct a plenary
review of the merits of the original decision.”28 Rather, the Court’s overall review of a Board
decision finding no CUE in a prior, final decision is limited to determining whether the Board’s
finding was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law,”29 and whether it was supported by an adequate statement of reasons or bases on all material
issues of fact and law.30 But the components of a valid CUE finding are subject to review under
24 38 U.S.C. §§ 5109A, 7111; see DiCarlo, 20 Vet.App. at 54–58; 38 C.F.R. §§ 3.105 (2018), 20.1400–1411
(2018).
25 Russell v. Principi, 3 Vet.App. 310, 313–14, 319 (1992); see Simmons v. Wilkie, No. 16–3039, _ Vet.App. , , 2018 U.S. App. Vet. Claims LEXIS 1265, at 8-9 (Sept. 20, 2018); King v. Shinseki, 26 Vet.App. 433, 439
(2014); Bouton v. Peake, 23 Vet.App. 70, 71–72 (2008); Damrel v. Brown, 6 Vet.App. 242, 245 (1994); see also Bustos
v. West, 179 F.3d 1378, 1380–81 (Fed. Cir. 1999).
26 Andrews v. Principi, 18 Vet.App. 177, 181 (2004) aff’d sub nom Andrews v. Nicholson, 421 F.3d 1278 (Fed.
Cir. 2005) (quoting Russell, 3 Vet.App. at 313–14).
27 Fugo v. Brown, 6 Vet.App. 40, 43 (1993).
28 Andrews, 18 Vet.App. at 181; see Archer v. Principi, 3 Vet.App.4 33, 437 (1992).
29 38 U.S.C. § 7261(a)(3)(A).
30 38 U.S.C. § 7104(d)(1); see Cacciola v. Gibson, 27 Vet.App. 45, 59 (2014); King, 26 Vet.App. at 439.
6
the standards applicable to each.31 Of particular relevance here, whether an applicable regulation
was correctly applied or interpreted is a question of law, which the Court reviews de novo.32
􀹠e appellant argues that the Board misinterpreted 38 C.F.R. § 3.344 when it found the
regulation inapplicable to the reduction of his PTSD rating in 1974.33 􀹠e Board held that § 3.344
provides rating protection only when a veteran has the exact same disability rating for at least a 5-
year period.34 􀹠e appellant finds this reading too narrow. He suggests that the regulation protects
any baseline level of symptomatology that exists for at least 5 years. For example, under the
appellant’s logic, if a veteran maintains a rating of at least 50% for 5 years, that 50% rating receives
heightened protections even if the actual rating percentage changed over that period. We turn now
to whether that assertion is a correct reading of § 3.344.
B. Rating Protection Under § 3.344
At its core, 38 C.F.R. § 3.344 reflects the common sense principle that the longer a veteran
has a given disability rating, the more likely it is both that such a rating has stabilized and,
therefore, that a veteran has come to rely on continuing to receive a corresponding amount of
monetary benefits. In recognition of this principle, VA imposed on itself through the regulation a
heightened duty to show that a rating reduction is proper once such a rating has existed at the same
level for a significant length of time. For example, when a new examination shows improvement,
VA must review the entire record of medical evidence “to ascertain whether the recent examination
is full and complete.”35 And if the recent examination showing improvement is “less full and
complete than those on which payments were authorized . . . it will not be used as a basis of
reduction.”36 Furthermore, with regard to diseases subject to temporary and episodic improvement,
a veteran’s rating will not be reduced on a single examination absent evidence that clearly shows
sustained improvement. Lastly, before VA can reduce a rating for any disability entitled to
31 Simmons, _
Vet.App. at , 2018 U.S. App. Vet. Claims LEXIS 1265, at *9; Hopkins v. Nicholson, 19 Vet.App. 165, 167–68 (2005). 32 Simmons, Vet.App. at __, 2018 U.S. App. Vet. Claims LEXIS 1265 at *9–*10; Hopkins, 19 Vet.App. at
168; see also George v. Shulkin, 29 Vet.App. 199, 2016 (2018); Stallworth v. Nicholson, 20 Vet.App. 482, 487 (2006);
Joyce v. Nicholson, 19 Vet.App. 36, 43–44 (2005); Andrews, 18 Vet.App. at 182.
33 Appellant’s Brief (Br.) at 5.
34 R. at 33.
35 38 C.F.R. § 3.344(a) (2018).
36 Id.
7
heightened procedural protections under § 3.344, it must first consider whether that improvement
is reasonably certain to remain under the ordinary conditions of life.37 􀹠e point is that when a
rating qualifies for these heightened protections, it is more difficult for VA to implement a
reduction. Here, it is undisputed that VA, in 1974, did not afford, or even discuss, these procedural
protections when reducing the appellant’s PTSD rating to 10%. 􀹠e resolution of this appeal hinges
solely on whether the appellant’s PTSD qualifies for such rating protections.
It is well established that “[r]egulatory interpretation begins with the language of the
regulation, the plain meaning of which is derived from its text and its structure.”38 If the plain
meaning is clear, then that interpretation controls and that is the end of the matter.39 Finally, when
assessing the plain meaning, words are given “their ordinary, contemporary, common meaning”
absent some indication that they were meant to mean something else.40
Subesection (c) of § 3.344 establishes when the heightened protections of the regulation
apply. In 1974, as today, this provisions read as follows:
(c) Disabilities which are likely to improve. 􀹠e [rating protection] provisions of
paragraphs (a) and (b) of this section apply to ratings which have continued for long
periods at the same level (5 years or more). 􀹠ey do not apply to disabilities which
have not become stabilized and are likely to improve. Reexaminations disclosing
improvement, physical or mental, in these disabilities will warrant reduction in
rating.
􀹠e appellant concedes that his PTSD rating did not continue at a specific percentage for 5
years or more.41 Nevertheless, he argues that § 3.344 applies to the 1974 reduction of his PTSD
rating because the periods for which he was rated at 50% and 30% may be combined to reach the
5-year mark, and that the regulation protects the lowest rating awarded within those 5 years. 􀹠e
Secretary argues that combining different rating periods is permissible under the regulation, but
asserts that the rating protection can be earned through such combination only when the disability
rating has increased within the 5-year period, i.e., when the condition is worsening.42 Per the
37 See id.
38 Petitti v. McDonald, 27 Vet.App. 415, 422 (2015); see Good Samaritan Hosp. v. Shalala, 508 U.S. 402,
409 (1993).
39 Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006).
40 See Williams v. Taylor, 529 U.S. 420, 431 (2000); Prokarym v. McDonald, 27 Vet.App. 307, 310 (2015).
41 Appellant’s Br. at 7.
42 Secretary’s Br. at 18 (arguing that § 3.344 rating protection may apply to a rating that changed within the
5-year period if the condition is worsening, but not if it is improving).
8
Secretary’s reading of § 3.344(c), the appellant’s condition (1) never stabilized at either 50% or at
30%, and (2) was improving, not worsening. He argues that because the appellant’s PTSD was
improving, the appellant can’t combine the periods in which he held different ratings and, therefore,
in 1974 was not entitled to the rating protections of § 3.344.
As discussed in detail below, the Court rejects both parties’ interpretations. 􀹠e plain
language of the regulation makes clear that the 5-year requirement can’t be met by combining 2
periods with different rating percentages no matter whether the ratings fluctuated upward or
downward. 􀹠e Court holds that a rating becomes entitled to heightened procedural protections
under § 3.344(c) only when it has existed at the exact same percentage for at least 5 years.
􀹠e first two sentences of subsection (c) are the operative provisions. 􀹠e opening sentence
affirmatively defines the ratings to which the enhanced protections of § 3.344 apply. 􀹠e second
sentence has the same aim, but approaches the matter by providing examples of disabilities that
do not merit such protections. 􀹠e regulation’s use of rating in the first sentence of subsection (c),
and disabilities in the second sentence, highlights the subtle difference between “disability ratings”
and “disabilities” generally. 􀹠e former describes the numerical value that VA assigns based on
what it perceives is the “average impairment in earning capacity resulting from [a disability].”43
􀹠e latter is a more holistic characterization that takes into account not only the assigned rating,
but also other descriptors, including explanations of the disability within medical records.44
Contrary to the parties’ contentions, the best reading of the second sentence of subsection (c) is to
prevent the protections from applying to disabilities where slight improvement is shown, or is
expected in the future, but when such improvement does not reach a level that warrants a lower
rating in terms of a percentage on the rating scale. We conclude that, taken together, these
regulatory provisions are clear that § 3.344’s protections did not apply to the appellant in 1974.
We begin by emphasizing that the heightened duties outlined above apply only to “ratings
which have continued for long periods at the same level.”45 􀹠e applicability of the regulation does
not hinge on whether a disability, in some larger, holistic sense, has remained at the same level.
43 38 C.F.R. § 4.1 (2018).
44 See 􀭡un v. Peake, 22 Vet.App. 111, 115 (2008), aff’d sub nom. 􀭡un v. Shinseki, 572 F.3d 1366 (Fed. Cir.
2009) (noting that extraschedular consideration is required when the assigned rating does not fully contemplate the
actual disability of a veteran.).
45 § 3.344(c) (emphasis added).
9
Rather, based on the plain language and the surrounding provisions, the word ratings refers to
specific percentage grades for disabilities per VA’s rating schedule. For starters, the dictionary
defines a “rating” as a “classification according to grade or rank.”46 􀹠us, a plain reading associates
the word “rating” with the grade VA assigns to a disability. 􀹠e appellant suggests that the word
“rating” refers to some baseline level of symptomatology or an overall disability picture. But that
contradicts the ordinary definition of the term.
􀹠e Court’s understanding in this regard is harmonious with how Congress and VA use the
word “rating.” For example, in 38 U.S.C. § 1155, the statutory provision granting VA authority to
create and modify the rating schedule, Congress states that “[VA] shall adopt and apply a schedule
of ratings . . . [that] provide[s] . . . grades of disability . . . upon which payments of compensation
shall be based.” 􀹠at section then continues by specifying that the schedule is to be constructed
with percentage grades in 10% increments. 􀹠e tabular rating schedule VA created under this
authority confirms this reading of “rating.” 􀹠e schedule is comprised of two columns, with the
specific diagnosis or symptomatology on the left and the corresponding rating percentage on the
right.47 􀹠e “rating” column on the right contains only numbers relating to the symptoms found on
the left.48 So, when VA is adjudicating a disability claim, it matches the symptoms to a percentage.
Symptomatology may increase in severity without becoming so severe as to reach a higher rating
percentage. 􀹠us, symptoms and ratings are entirely distinct concepts and one cannot be shorthand
for the other, as the appellant suggests. With the understanding that the applicability of § 3.344 is
premised on how long a rating has been in place, as opposed to how long some baseline
symptomatology has existed, we can analyze exactly how long a rating must exist before it
becomes entitled to heightened protections.
For now, let’s stick with the first sentence. 􀹠e phrase “continued . . . at the same level” is
clear and specific. 􀹠e common meaning of this phrase is not in doubt. 􀹠e dictionary defines the
word “same” as “identical with what is about to be or has just been mentioned.”49 Another
46 THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, 1602 (2d ed., unabridged) (hereinafter
RANDOM HOUSE).
47 See, e.g., 38 C.F.R. § 4.71a (Diagnostic Code 5276) (2018).
48 Id.
49 RANDOM HOUSE at 1696.
10
dictionary defines “same” as “not changing or showing change.”50 􀹠e word “level” means “a
degree of attainment” or “a relative position in respect to some norm in a scale of estimating.”51
􀹠is language makes clear that § 3.344(a) applies when a rating exists for 5 years without changing
its degree or position on the rating schedule. In other words, if the appellant’s initial rating was
50%, it cannot change and must be “identical” to 50% after 5 years. We conclude that the ordinary
or common meaning of “same level” does not contemplate combining periods of time when a
person has different ratings above a minimum threshold; rather, the person’s rating must be exactly
the same for 5 years to qualify for the protections.
􀹠e second sentence of subsection (c), which describes the type of disabilities that do not
qualify for rating protection, reinforces our conclusion. It provides that rating protection does not
apply to disabilities that have not stabilized and are likely to improve.52 􀹠e word “stable” means
“likely to continue or last; firmly established; enduring or permanent.”53 And to “stabilize” means
“to maintain at a given or unfluctuating level or quantity.”54 􀹠ese definitions remove any doubt
(although we had none) that § 3.344 does not apply to disabilities for which the ratings have
changed or fluctuated.55 And lastly, turning to the final qualifying clause of subsection (c), it says
that rating protections do not apply to disabilities that are likely to improve. To “improve” means
to “make better in quality.”56 􀹠is language does not need very much unpacking. Simply put,
disabilities that got better, or are likely to, are not eligible for rating protections. Whether a
disability has “improved” is not wholly dependent on the assigned rating, but rather is determined
based on the full disability picture, which encompasses the type of disability involved, the ratings
previously and currently assigned, and the entire record of medical evidence.
50 THE NEW LEXICON WEBSTER’S ENCYCLOPEDIC DICTIONARY, 882 (1991 ed., unabridged) (hereinafter
WEBSTER’S).
51 Id. at 569.
52 See § 3.344(c).
53 RANDOM HOUSE at 1852.
54 Id.
55 Considering the inverse of this language, the dictionary defines “unstable” as “unsteadfast; inconsistent;
wavering.” RANDOM HOUSE at 2087. 􀹠is definition, too, fits the interpretation that the rating protections do not apply
to ratings that changed or fluctuated within a 5-year period.
56 WEBSTER’S at 487.
11
Because the plain meaning of the regulation is clear it is controlling, we need not go further
with the analysis. However, even if the appellant’s proffered interpretation did not contradict the
plain language of the regulation, we would still reject it because it leads to absurd results and is
entirely inconsistent with how the words in the regulation are used in the “real world.”
To illustrate the absurdity, consider a situation in which a veteran, “Vanessa,” received an
initial disability rating of 100%. Under the appellant’s reading of § 3.344, even if VA reduced
Vanessa’s rating by 10% every year, leaving her with a 50% rating after 5 years, her rating would
still be entitled to protections if VA attempted to reduce her rating below 50%. Indeed, the appellant
argues that he “need only to have been rated at a level no lower than a particular disability level
for five years.”57 Applied to Vanessa, she was rated at a level “no lower than” 50% for at least 5
years, even though her rating changed every year. 􀹠e logical conclusion of this rationale is that,
once a veteran has been service connected for at least 5 years, he or she would automatically
qualify for rating protection at whatever his or her lowest rating was over those 5 years. 􀹠is would
result in every service-connected disability becoming “stabilized” after 5 years. 􀹠is interpretation
requires the Court to ignore the several qualifying phrases within subsection (c) that intentionally
limit protection to those ratings that have not changed in a long time and are unlikely to change in
the future. 􀹠e appellant’s proffered interpretation also asks us to ignore that the regulation includes
an explicit exception for disabilities that are improving.58 We shouldn’t interpret the law to lead to
such an absurdity.59
In addition, the appellant’s interpretation is fundamentally inconsistent with the common
way in which we use the words that are contained in the regulation. For example, assume you have
an office in a 50-story building. If your office was on the 30th floor for three years and on the 50th
floor for two years, you would never say that your office had been on the “same level”—the 30th
floor—for five years. But that is what the appellant’s argument as to the meaning of “same level”
would dictate. And that is nonsensical. 􀹠ere simply is no way to contort the English language to
read § 3.344(c) in a way that is consistent with the appellant’s position.
57 Appellant’s Br. at 8.
58 See § 3.344(c).
59 See Atencio v. O’Rourke, 30 Vet.App. 74, 83 (2018).
12
Before turning back to the Board’s decision, we pause briefly to consider the Secretary’s
position. Recall the Secretary’s suggestion that § 3.344(c) provides rating protection when a
veteran’s ratings have been increasing over time even though the ratings have not been the same.60
So, for example, if a veteran was rated at 50% for 3 years and then 70% for 2 years, the Secretary
would say that the veteran is entitled to the rating reduction protections of § 3.344 if his or her
rating was to go below 50%. Of course, the Secretary is generally free to provide greater procedural
protections to veterans than his own regulations provide, but his interpretation of the regulatory
language here is as inconsistent with § 3.344(c) as is that of the appellant.61 Just as the English
language does not support the appellant’s position, it likewise does not support the Secretary’s
views for the reasons we have explained.
C. 􀭡e Board’s Analysis of Section 3.344
We explained in the previous section that § 3.344 applies only to ratings that have remained
at precisely the same percentage for 5 years or more. Next we must consider, through the lens of
CUE, whether the Board applied the regulation properly in its decision now under collateral attack.
In the Board’s May 2017 decision, it held that no error existed in the first prong of the CUE
analysis—whether the RO in 1974 applied the law correctly— and, thus, found “no need to proceed
to the second and third prongs of the CUE test.”62 When analyzing § 3.344, the Board held that the
plain language explicitly “limits the provisions . . . to ‘ratings which have continued for long
periods of time at the same level’ and note[d] that this section does ‘not apply to disabilities that
have not become stabilized.”63 It then held:
[􀹠e appellant’s] rating did not continue at the same level for five years. Instead,

[he]

was given three different ratings between his separation from service in 1968
and 1974, the latter two of which revised his rating down. 􀹠is history is consistent
with a disability that had not become stabilized, and thus should not have been
afforded the protections of § 3.344(a).64
60 See, e.g., Secretary’s Br. at 18.
61 As the appellant notes, the Secretary has taken this same position in another appeal before the Court. See
Simunovich v. Shulkin, No. 16-2604, 2018 U.S. App. Vet. Claims LEXIS 1379 (Oct. 17, 2018) (mem. dec.). 􀹠e Court
in that case accepted the Secretary’s concession of error based on his interpretation of the regulation. Id. at * 11-*13.
Of course, that memorandum decision is not binding here. See U.S. VET. APP. R. 30(a). 􀹠is also answers the
appellant’s citation of this decision in support of his argument. In any event, today we authoritatively have defined
what § 3.344(c) means and that interpretation is binding regardless of Simunovich.
62 R. at 33.
63 Id. (quoting 38 C.F.R. § 3.344).
64 R. at 33.
13
Essentially, the Board held that because the appellant’s rating did not continue at a single
rating percentage for 5 years or more, his rating was not entitled to protection under § 3.344 in

  1. 􀹠e Board highlighted that the appellant received three different ratings since separation,
    none of which were in place for 5 years or more. Further, the Board noted that the medical evidence
    suggests that the appellant’s PTSD was improving. 􀹠e Board correctly identified these facts as
    disqualifying the appellant’s rating from protection. 􀹠is analysis is spot-on with the Court’s
    interpretation of § 3.344(c). In sum, the Board’s decision is not arbitrary, capricious, an abuse of
    discretion, or otherwise not in accordance with the law and it provided an adequate statement of
    reasons and bases explaining how it reached its conclusion.
    III. CONCLUSION
    After consideration of the parties’ briefs, oral arguments, the record on appeal, and the
    governing law, the Court AFFIRMS the Board’s May 1, 2017, decision.

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