Veteranclaims’s Blog

September 18, 2020

Single Judge; CUE; it is unclear why the Board determined that evidence from 1987 would not have altered the November 1990 decision, had the 1990 Board applied the appropriate standard to Mr. Adams’s claim; it is unclear how the Board could “infer[] that the [1990] Board” found that Mr. Adams’s condition had improved, given that it also conceded that the 1990 Board erroneously failed to consider evidence from 1987. Because of this concession, this inference appears to be a logical fallacy;

Filed under: Uncategorized — Tags: — veteranclaims @ 10:41 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-3095
MONTY E. ADAMS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Senior Judge: U.S. Marine Corps veteran Monty E. Adams, appeals through counsel a January 16, 2019, Board decision that found no clear and unmistakable error (CUE) within its previous November 15, 1990, decision. Because the Board failed to apply the correct legal standard when it reviewed evidence in relation to the November 1990 decision and provided inadequate reasons or bases for its findings, the Court will set aside and remand the January 2019 decision for readjudication.
I. ANALYSIS
In January 2019, the Board denied revising the November 1990 decision based on CUE because it determined that the November 1990 Board properly found that Mr. Adams’s service-connected schizophrenia did improve.2 Thus, the Board reasoned that the November 1990 decision correctly confirmed that a rating reduction for the service-connected condition was warranted.3 In
1 Judge Davis is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 03-20 (Jan. 2, 2020).
2 Record (R.) at 5-24.
3 Id.
2
making this finding, the Board, in the decision on appeal, conceded that it erred in 1990 by “not considering the 1987 evidence” that showed that Mr. Adams suffered from “depressed mood, inappropriate laughing, poor judgment and impaired insight regarding his illness . . . [and a primary diagnosis of] antisocial personality disorder.”4 The Board, however, reasoned this error was not CUE because the November 1990 Board relied on a May 1989 VA examination to confirm the rating reduction.5 The Board further found that the May 1989 examination was thorough, even though the Board in November 1990 “did not expressly discuss the thoroughness of the May 1989 examination.”6 The Board further explained that the conceded error was not CUE because in addition to the May 1989 examination, the November 1990 Board also relied upon the veteran’s statements to confirm the reduced rating.7
Mr. Adams argues that the Board erred in denying his CUE motion because it failed to meet the correct evidentiary burden in its November 1990 decision.8 The Secretary disagrees and argues that the Board did not err in any of its determinations.9
A decision that has become final may not be reversed or revised in the absence of CUE.10 To establish CUE, the appellant must first show that either (1) the correct facts in the record were not before the adjudicator or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied.11 Second, the alleged error must be “undebatable,” and not merely “a disagreement as to how the facts were weighed or evaluated.”12 Finally, the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered.13
4 R. at 21.
5 R. at 22.
6 R. at 22.
7 Id.
8 Appellant’s Brief (Br.) at 12-30.
9 Secretary’s Br. at 9-23.
10 See 38 U.S.C. § 7111(a).
11 Damrel v. Brown, 6 Vet.App. 242, 245 (1994).
12 Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc).
13 Id.; see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the “manifestly changed the outcome” language from Russell, 3 Vet.App. at 313-14); see also King v. Shinseki, 26 Vet.App. 433, 442 (2014) (“Whether it is reasonable to conclude that the outcome would have been different is not the standard that must be met for a motion alleging [CUE] to succeed. The governing law requires that the error be ‘undebatable’ and that the commission of the alleged error must have ‘manifestly changed the outcome’ of the decision.” (citing Russell,
3
“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 result would have been manifestly different but for the error.”14 “[I]f it is not absolutely clear that a different result would have ensued,” based upon the facts and law that were understood at the time of the decision, then any error that may have occurred in a final Board or RO decision is not clear and unmistakable.15
The Court’s review of the Board’s determination on CUE is limited to whether that conclusion was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” or unsupported by adequate reasons or bases.16 But the preliminary determinations necessary to the ultimate CUE finding are subject to review under the standards applicable to each.17 Of particular relevance here, whether an applicable statute or regulation was correctly applied or interpreted is a question of law, which the Court reviews de novo.18
The Court determines that the Board did not provide adequate reasons or bases for its finding that there was no CUE in the November 1990 Board decision. Specifically, it is unclear why the Board determined that evidence from 1987 would not have altered the November 1990 decision, had the 1990 Board applied the appropriate standard to Mr. Adams’s claim. As an initial matter, it is unclear how the Board could “infer[] that the [1990] Board” found that Mr. Adams’s condition had improved, given that it also conceded that the 1990 Board erroneously failed to consider evidence from 1987. Because of this concession, this inference appears to be a logical fallacy because the 1990 Board could not have applied the proper standard to Mr. Adams’s claim, while simultaneously failing to review relevant evidence as required by the proper legal standard.19
3 Vet.App. at 313-14)).
14 Fugo v. Brown, 6 Vet.App. 40, 43 (1993).
15 Id. at 44.
16 38 U.S.C. § 7261(a)(3); Eddy v. Brown, 9 Vet.App. 52, 57 (1996).
17 Simmons v. Wilkie, 30 Vet.App. 267, 273-75 (2018); Hopkins v. Nicholson, 19 Vet.App. 165, 167-68 (2005).
18 Simmons, 30 Vet.App at 273-75; 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).
19 Brown v. Brown, 5 Vet. App. 413, 421 (1993) (explaining that in rating reduction cases, the Board is required “to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” (citing Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991))). The Board could not have applied the
4
Then, rather than provide evidence to back up its inference, the Board switches course and argues that it is “not undebatable that the outcome would have been different”20 had the Board applied the correct standard. It is in the Board’s discussion surrounding this statement that it erroneously switches the burden of proof onto the veteran. The Board begins by correctly framing the relevant inquiry as concerning whether the 1987 evidence, if considered, would have manifestly changed the outcome of the November 1990 decision. Though the January 2019 decision attempted to address this question, the Board applied the wrong standard of law when assessing whether the 1987 evidence would have manifestly changed the outcome of the November 1990 decision. Although the Court agrees that it is not “absolutely certain that the Board’s consideration of the 1987 evidence” would have restored “the 10[%] rating,”21 this is not what the Board should have reviewed. Instead, the Board should have addressed whether it was proper for Mr. Adams’s 10% rating to be reduced, not whether his disability warranted restoration of the 10% rating. Simply put, the Board should have assessed the ability of the 1987 evidence to prevent a reduction of the 10% rating, not whether the 1987 evidence could overcome the probative value of the other evidence of record. The Board should have reviewed whether the 1987 evidence was enough to show that that Mr. Adams’s condition had not improved.
Furthermore, it is unclear why the 2019 Board found the May 1989 VA examination was thorough, given the inconsistencies present when comparing this report and the 1987 evidence. Namely, despite evidence from 1987 showing that Mr. Adams had a “depressed mood, inappropriate laughing, poor judgment and impaired insight regarding his illness,”22 the 1989 examiner based his findings at least partly on Mr. Adams’s description of his condition.23 Equally concerning is the 1989 examiner’s admission that Mr. Adams feared that his current mental diagnosis would “frighten prospective employers.”24
proper standard without reviewing the 1987 evidence.
20 R. at 19.
21 R. at 22.
22 R. at 21.
23 R. at 1754-55.
24 R. at 1755.
5
Given the previous findings regarding the lack of insight regarding his illness, coupled with an apparent desire by the veteran at the time to not be “label[ed]” as schizophrenic,25 it is unclear whether the 1989 examiner accounted for Mr. Adams’s lack of insight. Because the 1989 examiner failed to discuss important symptomatology that potentially impacted the findings therein, it is unclear why the Board found this exam thorough for the purposes of the 1990 Board decision.26 Furthermore, it is unclear why the Board afforded Mr. Adams’s statements at that time any probative value, given the findings surrounding his lack of awareness of his illness. The Court will therefore remand the matter for the Board to provide clarity regarding these deficiencies in its reasons or bases, and for it to readdress the value of the 1987 evidence.27
On remand, Mr. Adams is free to submit any additional argument and evidence, including his argument surrounding hypertension, and he has 90 days to do so from the date of the postremand notice VA provides.28 The Board must expeditiously consider any such evidence or argument submitted.29
II. CONCLUSION
On consideration of the foregoing, the January 16, 2019, decision of the Board is SET ASIDE and REMANDED for further consideration consistent with this decision.
DATED: September 17, 2020
Copies to:
Emily Woodward Deutsch, Esq.
VA General Counsel (027)
25 Id.
26 Brown, 5 Vet.App. at 421.
27 Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate).
28 See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018).
29 See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical examination of the justification for the decision.”).

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