Veteranclaims’s Blog

October 28, 2021

Single Judge Application; brain trauma 1970; 38 C.F.R. § 4.124, DC 8045 (1970) (providing that “[p]urely subjective complaints, such as headache, dizziness, insomnia, tinnitus, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304”); in 1989, the Board erred by incorrectly applying the regulatory provisions in effect at the time of its decision. Specifically, the Court determined that the version of DCs 8045 and 9304 in effect at the time of the May 1989 Board decision provided that brain disease due to trauma was rated under DC 8045 as follows: “Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304. This 10[%] disability rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma.” 2015 WL 5255331, at*8 (quoting 38 C.F.R. § 4.124a, DC 8045 (1988));

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3707
GEIRY L. MATHIS, APPELLANT,
V.
ROBERT L. WILKIE,
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: Pro se appellant Geiry L. Mathis appeals a September 28, 2017, Board of Veterans’ Appeals (Board) decision that determined there was no clear and unmistakable error (CUE) in two May 16, 1989, Board decisions, one that (1) denied a disability rating in excess of 10% for tinnitus with headaches, (2) did not assign two disability ratings for bilateral tinnitus, and (3) refused to grant a separate disability rating for headaches; and another that denied service connection for post-traumatic stress disorder (PTSD). Record of Proceedings (R.) at 1-12.
The appellant appeals a separate decision that the Board also issued on September 28, 2017, that denied service connection for right ear hearing loss and glaucoma; denied increased disability ratings for hepatitis C with cirrhosis, left ear hearing loss, and a residual scar of gunshot wound (GSW) of the left ear and left side of the head; and denied the presence of CUE in a March 30, 1979, rating decision. R. at 13-38. The Board also dismissed without prejudice the appellant’s claim that a March 31, 1971, Board decision should be revised or reversed based on CUE. R. at 32.1
1 The appellant explicitly does not challenge the denials of right ear hearing loss, glaucoma, hepatitis C with cirrhosis, left ear hearing loss, a residual scar of a GSW of the left ear and left side of the head. Appellant’s Informal Brief (Br.) at 6. Therefore, the Court deems those issues abandoned and will dismiss the appeal as to those issues. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). The only issues remaining on appeal are whether
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Additionally, the Board remanded disability compensation claims for osteoarthritis, chronic fatigue syndrome, an eye disorder (other than glaucoma, diabetic retinopathy), and hypertension; and an increased-rating claim for diabetes mellitus type 2. R. at 32-36. The remanded claims are not before the Court. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board cannot be reviewed by the Court).
On May 2, 2019, the Court vacated the September 28, 2017, Board decision that found no CUE in a May 1989 Board decision, and remanded the vacated matter for further proceedings. Additionally, the Court affirmed the portion of the Board’s decision that found no CUE in the March 30, 1979, rating decision. In the memorandum decision, the Court stated that, based on his informal brief, the pro se appellant explicitly did not challenge the Board’s dismissal of his contention that a March 31, 1971, Board decision should be revised or reversed based on CUE.
On May 8, 2019, the appellant filed a motion for reconsideration. In his motion for reconsideration, the appellant stated that he “did not withdraw any CUE claims from 1971 to 2019.” Motion for Reconsideration at 1. Upon consideration of the foregoing, the appellant’s May 8, 2019, motion for reconsideration is granted; the May 2, 2019, memorandum decision is withdrawn; and this decision is issued in its stead.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1968 to September 1969. R. at 3650. In January 1970, a VA regional office (RO) granted him service connection for hearing loss with tinnitus and assigned a noncompensable disability rating. R. at 14538. The appellant disagreed with the decision and asserted that he was experiencing severe headaches and ringing in his ears, which was affecting his employment. R. at 14526.
In March 1970, the RO granted service connection for residuals of trauma with resultant subjective headaches and tinnitus and assigned a 10% disability rating for “headaches and tinnitus due to trauma” under Diagnostic Code (DC) 9304, effective October 1, 1969. R. at 14524; see
CUE was present in (1) the May 16, 1989, Board decisions; (2) the March 31, 1971, Board decision; (3) and the March 30, 1979, rating decision.
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38 C.F.R. § 4.124, DC 8045 (1970) (providing that “[p]urely subjective complaints, such as headache, dizziness, insomnia, tinnitus, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304”); 38 C.F.R. § 4.132, DC 9304 (1970) (providing a 10% disability rating for “[s]light impairment of social and industrial adapatability”).
In March 1971, the Board denied a disability rating in excess of 10% for headaches and tinnitus under DC 9304, noting that ratings in excess of 10% for brain disease as a result of trauma are not assignable in the absence of a diagnosis of chronic brain syndrome associated with brain trauma, and therefore, the appellant had been awarded the maximum evaluation permitted by the rating schedule for his headaches and tinnitus. R. at 14466-71; see 38 C.F.R. § 4.124, DC 8045 (1970).
In November 1978, a VA examiner diagnosed the appellant with non-psychotic organic brain syndrome (OBS), brain trauma residuals, and explosive personality disorder. R. at 14125-26. The examiner found that the appellant “had difficulty holding a job” and “could not sometimes work due to his head problems,” but was “also working for a band as a singer.” R. at 14125.
A January 1979 rating decision characterized the appellant’s disability as “non-psychotic OBS with brain trauma and tinnitus,” and the RO awarded a 50% disability rating under DC 9304, effective October 17, 1978. See 38 C.F.R. § 4.124, DC 8045 (1978) (providing that “[r]atings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma”); 38 C.F.R. § 4.132, DC 9304 (1978) (providing a 50% disability rating under VA’s general rating formula for OBS when there is “[c]onsiderable impairment of social and industrial adaptability”). R. at 14128.
In a March 30, 1979, rating decision, the RO stated that the neurological examination “casts some doubt on the retention of the diagnosis” of OBS, and reduced the appellant’s disability rating for “[OBS], non[-]psychotic, residuals of trauma” under DC 9304 from 50% to 30%. R. at 14085-86. The RO also denied a total disability rating based on individual unemployability (TDIU). Id.
Following development, a May 16, 1989, Board decision denied a disability rating in excess of 30% for OBS under DC 9304; a disability rating in excess of 10% for tinnitus with headaches under DC 6260; a disability rating in excess of 10% for left ear hearing loss; and a
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disability rating in excess of 10% for a scar. R. at 11839-46. The Board stated that the appellant’s 10% disability rating for tinnitus “is the highest rating provided under the applicable rating criteria,” and denied a separate rating for headaches based upon its conclusion that “any impairment from headaches, as well as dizziness and insomnia, [is] contemplated by the rating now in effect for [OBS].” R. at 11844.
In April 2010, following development on these issues and the appellant’s other claims not currently before the Court, the Board issued a decision finding CUE in the March 30, 1979, rating decision. R. at 7965-73. The Board noted that rating decision improperly reduced the appellant’s disability rating from 50% to 30% for OBS, and the Board restored the appellant’s 50% disability rating, effective July 1, 1979. R. at 7967.
The appellant appealed, and on January 25, 2012, the Court affirmed the April 2010 Board decision in part, vacated the decision in part, and remanded the vacated matter to the Board for further adjudication. Mathis v. Shinseki, No. 10-2052, 2012 WL 204259 (Vet. App. Jan. 25, 2012) (mem. dec.), judgment aff’d, appeal dismissed in part, 494 F. App’x 78 (Fed. Cir. 2012), and subsequent mandamus proceeding, No. 12-3575, 2013 WL 53745 (Vet. App. Jan. 4, 2013) (order), adhered to, No. 12-3575, 2013 WL 512745 (Vet. App. Feb. 13, 2013) (per curiam order).
On December 19, 2013, the Board denied a disability rating in excess of 10% for tinnitus with headaches; did not assign two disability ratings for bilateral tinnitus; and did not grant a separate disability rating for headaches. R. at 4083-99. In a separate decision, in order for VA to issue a Statement of the Case, the Board remanded the appellant’s claim that CUE was present in the March 1979 denial of TDIU. R. at 4100-02.
The Court again addressed the matter in a September 10, 2015, memorandum decision, vacating the December 2013 Board decision in part and remanding the vacated portion of the matter for further adjudication. Mathis v. McDonald, No. 16-3132, 2016 WL 6819040 (Vet. App. Nov. 18, 2016) (mem. dec.); R. at 2947-69. Specifically, in that memorandum decision, the Court determined that the Board had incorrectly found that the regulatory provisions pertaining to the appellant’s OBS, headaches, and tinnitus were correctly applied in 1989, and that the Board had failed to discuss whether this error would have manifestly changed the outcome of the decision.
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R. at 2959-60. Thus, we remanded the matter for an adequate statement of reasons or bases. R. at 2960.
Following development, the Board issued the two decisions on appeal, which, among other things, determined there was no CUE in a May 1989 Board decision, nor in a March 1979 rating decision. R. at 1-38. As related to the May 1989 Board decision, the Board stated that “it does appear that the Board in its May 1989 decision did not consider all of the regulatory provisions extant at the time of the decision.” R. at 7. However, the Board determined that 38 C.F.R. § 4.132 and Note 2 preceding the regulatory provision do not apply here because the appellant’s tinnitus, headaches, and OBS “are of etiology common to trauma of the head,” and not “common to the mental disorder.” R. at 8 (emphasis omitted). Thus, the Board concluded that no CUE was present in the May 1989 Board decision.
Additionally, the Board stated that in April 2010, it found CUE in the March 1979 decision and restored a 50% disability rating for the appellant’s OBS. R. at 28. The decision on appeal then noted that with the restoration, the appellant had a combined 60% schedular disability rating and met the schedular criteria for TDIU under the version of § 4.16(a) in effect at the time of the rating decision. R. at 29. However, the Board decision on appeal concluded that no additional CUE was present in the 1979 rating decision because evidence in the record at the time, including the November 1978 VA psychiatric examination, did not indicate that the appellant was incapable of securing or following a substantially gainful occupation at the time of the 1979 rating decision. R. at 30. This appeal followed.
II. ANALYSIS
A. CUE in the May 16, 1989, Board Decision
A CUE motion is a collateral attack on a final RO or Board decision. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). CUE is established when the following conditions are met: First, 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. 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,
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3 Vet.App. 310, 313-14 (1992) (en banc); see also Hillyard v. Shinseki, 24 Vet.App. 343, 349 (2011). Finally, the commission of 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. Russell, 3 Vet.App. at 313-14; see Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting “manifestly changed the outcome” language in Russell); see also King v. Shinseki, 26 Vet.App. 433, 442 (2014) (citing Russell, 3 Vet.App. at 313-14) (“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.”).
“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.” Fugo v. Brown, 6 Vet.App. 40, 43 (1993). “[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. Id. at 44. The Court’s review of the Board’s determination on the existence of 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. 38 U.S.C. § 7261(a)(3); Russell, 3 Vet.App. at 315. That standard of review, however, “‘contemplates de novo review of questions of law,'” including whether an applicable law or regulation was correctly applied. Joyce v. Nicholson, 19 Vet.App. 36, 43 (2005) (quoting Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004)).
A remand by the Court “confers on the veteran . . . , as a matter of law, the right to compliance with the remand orders,” and the Board itself errs when it fails to ensure compliance with the terms of such a remand. Stegall v. West, 11 Vet.App. 268, 271 (1998). Although the Secretary is required to comply with remand orders, it is substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination “more than substantially complied with the Board’s
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remand order”). In making its determinations, the Court is required to take due account of the rule of prejudicial error. 38 U.S.C. § 7261(b); Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004). As with all its material determinations of law or fact, the Board’s determinations must be supported by an adequate statement of reasons or bases; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
This Court previously addressed this matter in a September 10, 2015, memorandum decision, vacating a December 19, 2013, Board decision in part and remanding the vacated matter for further adjudication. Mathis v. McDonald, No. 14-0314, 2015 WL 5255331 (Vet. App. Sept. 10, 2015) (mem. dec.); R. at 2947-69. The Court determined that in 1989, the Board erred by incorrectly applying the regulatory provisions in effect at the time of its decision. Specifically, the Court determined that the version of DCs 8045 and 9304 in effect at the time of the May 1989 Board decision provided that brain disease due to trauma was rated under DC 8045 as follows:
“Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304. This 10[%] disability rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma.”
2015 WL 5255331, at*8 (quoting 38 C.F.R. § 4.124a, DC 8045 (1988))
.
We further noted that organic mental disorders listed in DCs 9300-9325 were rated under the General Rating Formula for Organic Mental Disorders. Id. (citing 38 C.F.R. § 4.132, DC 9300-9325 (1988)). The General Rating Formula for Organic Mental Disorders provided disability ratings from 0% to 100% depending on the level of impairment in social and industrial adaptability. § 4.132, DC 9300-9325 (1988). The rating criteria contained the following note, which preceded the general rating formula:
An organic mental disorder, as defined in the American Psychiatric Association manual, is characterized solely by psychiatric manifestations. However, neurological or other manifestations of etiology common to the mental disorder may be present, and if present, are to be rated separately as distinct entities under
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the neurological or other appropriate system and combined with the rating for the mental disorder.
§ 4.132, Note 2 (1988) (emphasis added).
We stated that this note “specifically instructed the rating specialist to rate ‘neurological or other manifestations of etiology common to the mental disorder . . . separately as distinct entities under the neurological or other appropriate system and combined with the rating for the mental disorder,'” Mathis v. McDonald, No. 14-0314, 2015 WL 5255331, at *9 (emphasis added) (quoting 38 C.F.R. § 4.132, Note 2 (1988)), and that “[n]either the Board decision . . . nor the May 1989 decision challenged for CUE addressed note 2 when assessing whether the appellant was entitled to a disability rating for headaches separate from his tinnitus and OBS.” Id.
The Court found this failure to apply the relevant regulatory provisions undebatable error because it was undisputed that the appellant’s OBS, tinnitus, and headaches share a common etiology. Id. We then reversed the Board’s determination and stated that the appellant’s tinnitus and headaches were to be rated separately as distinct entities. Id. We noted that, for an appellant to prevail on a CUE motion, “the movant must also demonstrate that the error manifestly changed the outcome of the decision being attacked for CUE,” id. (citing Russell, 3 Vet.App. at 313-14), and that
[b]ecause the Board incorrectly found that the regulatory provisions were correctly applied in 1989, the Board did not analyze the lay and medical evidence of record addressing the severity of the appellant’s headaches or otherwise explain its finding that the appellant failed to demonstrate that the outcome would have been manifestly different. This failure renders the Board’s statement of reasons or bases inadequate to facilitate review and requires that the matter be remanded for further adjudication consistent with this decision.
Id. at *10. Accordingly, the Court remanded the matter for the Board to determine whether there would have been a manifestly changed outcome in the 1989 Board decision had that Board correctly applied the proper regulations. Id.
In the decision here on appeal, the Board revisited the 1989 Board’s regulatory application and stated that “it does appear that the Board in its May 1989 decision did not consider all of the regulatory provisions extant at the time of the decision.” R. at 7. However, the Board determined
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that 38 C.F.R. § 4.132 and Note 2 do not apply here because the appellant’s tinnitus, headaches, and OBS “are of etiology common to trauma of the head,” and not “common to the mental disorder.” R. at 8 (emphasis omitted).
The Board blatantly disregarded the Court’s remand instructions and provided inadequate reasons or bases for doing so. The Court explicitly stated that the Board should apply 38 C.F.R. § 4.132 and Note 2, but for reasons beyond this Court’s comprehension, the decision on appeal circumvented our instructions and attempted to readjudicate the question and proffer its own rationale as to why 38 C.F.R. § 4.132 and Note 2 do not apply in this case. The Board was only to assess whether the error in failing to properly apply the regulation and note resulted in a manifestly changed outcome. Because an appellant has a right to the Board’s compliance with the Court’s remand instructions, the Board erred, and the Court will remand the matter for the Board to properly apply the regulatory provisions as it was instructed to do in our previous memorandum decision. See Stegall, 11 Vet.App. at 271.
Given this disposition, the Court need not, at this time, address the other arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him”). The appellant is free on remand to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
B. CUE in the March 30, 1979, Rating Decision
Additionally, the appellant argues CUE was present in a March 1979 rating decision that, in part, reduced the appellant’s disability rating for OBS from 50% to 30%, and denied entitlement to TDIU because he did not meet the schedular criteria for TDIU based on the reduction in his non-psychotic OBS. See Appellant’s Br. at 10; R. at 17. He asserts this was error because, in an
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April 2, 2010, decision, the Board found that the March 1979 rating decision’s reduction was improper and restored the appellant’s 50% disability rating for OBS, effective July 1, 1979. See Appellant’s Br. at 10; R. at 7967. Construed broadly, he argues that if the rating decision had not improperly reduced his OBS rating from 50% to 30%, he would have met the schedular criteria for TDIU, and thus would have been entitled to a total disability rating. Id.
The Secretary asserts that the appellant fails to show the March 1979 rating decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Secretary’s Br. at 15. Specifically, the Secretary contends that, although it was error for the 1979 Board to deny TDIU based on the appellant not meeting the schedular rating criteria, it is not undebatable that the appellant was not capable of securing or following a substantially gainful occupation at the time of the decision, and therefore the appellant’s assertions amount to little more than factual disagreements with the Board’s determinations. Id. at 13-15.
In the decision on appeal, the Board laid out the applicable regulatory provisions in place at the time of the 1979 rating decision:
To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100[%] disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60[%] or more, or, if more than one disability, at least one disability ratable at 40[%] or more and a combined disability rating of 70[%]. 38 C.F.R. § 4.16(a) (1978). For the purpose of establishing one 60[%] disability, or one 40[%] disability in combination, disabilities resulting from common etiology are sufficient. Id.
R. at 29.
The Board then stated that the appellant had a combined 60% schedular disability rating and met the schedular criteria for TDIU under the version of § 4.16(a) in place at the time of the rating decision. Id. However, the Board found that the appellant’s arguments could not establish CUE because “[w]hen there is evidence both pro and con on the matter, it is impossible for a [v]eteran to succeed in showing that the result would have been manifestly different as dictated in Fugo,” see Simmons v. West, 14 Vet.App. 84, 88 (2000), and in this case, even with restoration of the 50% disability rating for the appellant’s OBS, the evidence existing at the time, including a November 1978 VA psychiatric examination, showed that the appellant “had difficulty holding a
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job, that he could not sometimes work due to his head problems, but that he was also working for a band as a singer.” R. at 30 (emphasis in original). Thus, the Board concluded that “it was not undebatable that the Veteran was not capable of securing or following a substantially gainful occupation at the time of the March 30, 1979 rating decision.” Id. (emphasis in original).
The Court finds the Secretary’s argument persuasive. As noted in the previous section, in order for an appellant to prevail on their CUE challenge, 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, Russell, 3 Vet.App. at 313-14, and it must be “absolutely clear that a different result would have ensued,” Fugo, 6 Vet.App. at 44. So long as the Board articulates a satisfactory explanation for its decision, “including a rational connection between the facts found and the choice made,” the Court must affirm. Lane v. Principi, 16 Vet.App. 78, 83 (2002). Here, the Court cannot say that the Board’s determination that there was no CUE in the 1979 rating decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law because there was evidence in the record at the time of the 1979 decision showing the appellant’s ability to work. Specifically, the Board highlights, and the record confirms, that the November 1978 VA psychiatric examiner stated that the appellant had difficulty holding a job and sometimes had trouble working because of his head problems, but that he was working for a band as a singer. See R. at 30, 14125-26. Although unemployability is not required for TDIU, see Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (stating that an award of TDIU does not require a showing of 100% unemployability), because there is evidence in the record suggesting employment, it is not undebatable that the appellant was incapable of securing or following a substantially gainful occupation at the time of the March 1979 rating decision. Further, to the extent that the appellant’s arguments could be read to contend that VA improperly weighed the evidence in the 1979 rating decision, assertions of improper weighing of the evidence cannot constitute CUE. See Damrel, 6 Vet.App. at 246.2
2 The Board also notes that the appellant appears to contend that TDIU should be “reinstated” as a result of the OBS rating restoration, R. at 28; however, the Court agrees that nothing in the Record indicates the appellant was ever awarded TDIU previously, and we will not address that contention further.
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Accordingly, despite the erroneous reduction of his schedular disability rating in the March 1979 rating decision, the Court cannot conclude that this error would have manifestly changed the outcome as related to the appellant’s TDIU claim, and the Board’s decision on appeal was not arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, or unsupported by adequate reasons or bases. 38 U.S.C. § 7261(a)(3); Russell, 3 Vet.App. at 315. Therefore, we will affirm that portion of the Board decision concluding CUE was not present in the March 1979 rating decision.
C. CUE in the March 31, 1971, Board Decision
In his informal brief, the appellant stated that
[e]ntitlement to [service connection for] osteoarthritis, fatigue syndrome, eye disorder, right hearing loss, hypertension, glaucoma, [increased compensation claim for] diabetes 2, hep[atitis] C, left hearing loss, rating increase for scars, whether a March 31, 1971[,] for hearing [sic], all these claims the veteran withdraw[s] and will refill after the remands are met.
Attachment to Appellant’s Informal Br. at 6 (emphasis added). In this Court’s May 2, 2019, memorandum decision, the Court included the pro se appellant’s motion alleging CUE in the March 31, 1971, Board decision in the claims that he explicitly did not challenge. However, in the appellant’s motion for reconsideration, he explicitly states that he “does not withdrawal [sic] any CUE claims from 1971 to 2019.” Motion for Reconsideration at 1. Despite the apparent inconsistencies between the pro se appellant’s informal brief and his motion for reconsideration, we will take his motion for reconsideration at face value and find that he did not mean to withdraw his appeal of the part of the Board’s decision that dismissed without prejudice his assertion of CUE in the March 31, 1971, Board decision. See Rivera v. Shinseki, 654 F.3d 1377, 1381-82 (Fed. Cir. 2011) (reversing a Court decision that required a veteran to make a specific statement regarding the issue he wished to appeal even though his desire to appeal that issue was conveyed by clear implication in his correspondence); see also Hodge v. West, 155 F.3d 1356, 1262 (Fed. Cir. 1998) (noting the “uniquely pro-claimant” character of the veterans benefits system and requiring VA “to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits”); Ingram v. Nicholson, 21 Vet.App. 232, 256 (2007) (explaining that “a sympathetic
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reading of the appellant’s pleadings cannot be based on a standard that requires legal sophistication beyond that which can be expected of a lay claimant”).
However, even when examining the appellant’s informal brief anew, the Court finds that he has not met his burden of persuasion. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (“An appellant bears the burden of persuasion on appeals to this Court to show that such reliance was in error.”), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000); Berger v. Brown, 10 Vet.App. 166, 169 (1997) (stating that “the appellant . . . always bears the burden of persuasion on appeals to this Court”). Other than the above sentence that the Court originally construed as a withdrawal, the only other potential reference to CUE in a March 1971 decision appears on page 10 of the appellant’s informal brief, wherein he states that the Board “[f]ailed to apply 38 C.F.R. [§§] 4.1 [and] 4.2 [and] 4.7 in rating of March 31, 1970-71.” Those regulations address the “[e]ssentials of evaluative rating,” “[i]nterpretation of examination reports,” and when to take the “[h]igher of two evaluations,” respectively. Though the Court has a duty to construe a pro se appellant’s arguments liberally, pro se appellants still must raise specific arguments demonstrating perceived error in the Board’s decision. Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (“The Court requires that an appellant plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant’s arguments.”), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008). The Court cannot manufacture arguments on behalf of the appellant. Because the appellant’s citation to multiple general regulations does not evince any specific arguments for the Court to address regarding why the Board erred in dismissing without prejudice his CUE motion, the Court will not address this matter further. Locklear v. Nicholson, 20 Vet.App. 410 (2006). Accordingly, the Court will affirm the Board’s decision to dismiss without prejudice the appellant’s CUE motion as to the March 31, 1971, Board decision.
D. Assertions of Delay, Constitutional Violations, and Other Arguments
To the extent that the appellant alleges that VA errors in the adjudication of his claims constitute violations of his constitutional and due process rights, Attachment to Informal Br. at 8-9, the Court will not address mere assertions of constitutional impropriety without legal support. Brewer v. West, 11 Vet.App. 228, 236-37 (1998) (citing Gov’t & Civic Emps. Org. Comm., CIO v.
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Windsor, 353 U.S. 364, 366 (1957) (“Federal courts will not pass upon constitutional contentions presented in an abstract rather than in a concrete form.”)).
The appellant’s assertions regarding unadjudicated claims to include a traumatic brain injury and PTSD are also unpersuasive. The Court has already addressed the appellant’s contentions under docket numbers 14-0314 and 16-3132. Because the Court already decided these issues, we will not address them further. See Browder v. Brown, 5 Vet.App. 268, 270 (1993) (holding that appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case). However, if the appellant believes that VA has failed to adjudicate a claim, he should request that VA process it. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006).
Lastly, the appellant raises various allegations of VA error that are outside the Court’s jurisdiction. Pursuant to 38 U.S.C. § 7252 the Court’s jurisdiction is generally limited to review of final Board decisions. Accordingly, to the extent that the appellant alleges error regarding matters that were not adjudicated in the September 2017 decisions on appeal, the Court lacks jurisdiction to consider these matters and they will not be addressed. See 38 U.S.C. § 7252(a); Ledford v. West, 136 F.3d 776, 779 (Fed. Cir.1998) (holding that “the [C]ourt’s jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed”); see also Russell, 3 Vet.App. at 315 (stating that “[t]he necessary jurisdictional ‘hook’ for this Court to act is a decision of the [Board] on the specific issue of ‘[CUE]'”).
E. Pending Motions
The Court notes that there are outstanding motions dated June 13, 2018; June 22, 2018; and July 31, 2018. The Court construes those “motions” as reiterations of the appellant’s substantive litigation positions. Because these amount to little more than disagreement with the Secretary’s positions, the Court will direct the Clerk of the Court to file the documents, and the Court will deny the motions.
Additionally, on September 26, 2018, the appellant filed a motion for oral argument. In his motion, the appellant contends that oral argument is necessary because the Secretary refuses to apply the law and regulations correctly, instead placing him in an endless cycle of remands. Because the Court is not persuaded that oral argument would materially assist it in the disposition
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of this appeal, the motion for oral argument will be denied. See Janssen v. Principi, 15 Vet.App. 370, 379 (2001); see also U.S. VET. APP. R. 34(b) (“Oral argument normally is not granted on . . . matters being decided by a single Judge.”).3
To the extent that the appellant’s other pieces of correspondence could be construed as motions, the Court will deny those motions.
III. CONCLUSION
Upon consideration of the foregoing, the appellant’s May 8, 2019, motion for reconsideration is granted; the May 2, 2019, memorandum decision is withdrawn; and this decision is issued in its stead. As to the appellant’s claims regarding right ear hearing loss, glaucoma, hepatitis C with cirrhosis, left ear hearing loss, and a residual scar of a GSW of the left ear and left side of the head, the appellant explicitly does not challenge the Board’s determinations; therefore, those claims are DISMISSED. See Pederson, 27 Vet.App. at 285. After consideration of the appellant’s and the Secretary’s pleadings, and a review of the record, the September 28, 2017, Board decisions are AFFIRMED IN PART and VACATED IN PART and the vacated matter is REMANDED for further proceedings consistent with this decision. The Clerk of the Court is directed to file the document received from the appellant on July 2, 2018, as a motion. That motion is granted. The appellant’s pieces of correspondence dated June 13, 2018, June 22, 2018, and July 31, 2018, are also accepted as motions. Those motions are denied. All other pieces of correspondence that could be construed as motions are also denied.
DATED: June 21, 2019
3 The Court also notes that on June 22, 2018, the appellant submitted a document styled as a “petition for extraordinary relief,” and on July 2, 2018, the appellant filed a motion asking the Court to “please accept the petition or deny it, but don’t put it [under] Docket [No.] 17-3707. It [is] a petition.” Rule 21 of this Court’s Rules of Practice and Procedure governs petitions. The Court should have assigned it its own docket number. Accordingly, the Court will grant the July 2, 2018, motion and direct the Public Office to open the appellant’s petition for extraordinary relief under a separate docket number. The Court reminds the appellant that all petitions that he files must comply with our order from November 18, 2016, under Docket No. 16-3132.
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Copies to:
Geiry L. Mathis
VA General Counsel (027)

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3707
GEIRY L. MATHIS, APPELLANT,
V.
ROBERT L. WILKIE,
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: Pro se appellant Geiry L. Mathis appeals a September 28, 2017, Board of Veterans’ Appeals (Board) decision that determined there was no clear and unmistakable error (CUE) in two May 16, 1989, Board decisions, one that (1) denied a disability rating in excess of 10% for tinnitus with headaches, (2) did not assign two disability ratings for bilateral tinnitus, and (3) refused to grant a separate disability rating for headaches; and another that denied service connection for post-traumatic stress disorder (PTSD). Record of Proceedings (R.) at 1-12.
The appellant appeals a separate decision that the Board also issued on September 28, 2017, that denied service connection for right ear hearing loss and glaucoma; denied increased disability ratings for hepatitis C with cirrhosis, left ear hearing loss, and a residual scar of gunshot wound (GSW) of the left ear and left side of the head; and denied the presence of CUE in a March 30, 1979, rating decision. R. at 13-38. The Board also dismissed without prejudice the appellant’s claim that a March 31, 1971, Board decision should be revised or reversed based on CUE. R. at 32.1
1 The appellant explicitly does not challenge the denials of right ear hearing loss, glaucoma, hepatitis C with cirrhosis, left ear hearing loss, a residual scar of a GSW of the left ear and left side of the head. Appellant’s Informal Brief (Br.) at 6. Therefore, the Court deems those issues abandoned and will dismiss the appeal as to those issues. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). The only issues remaining on appeal are whether
2
Additionally, the Board remanded disability compensation claims for osteoarthritis, chronic fatigue syndrome, an eye disorder (other than glaucoma, diabetic retinopathy), and hypertension; and an increased-rating claim for diabetes mellitus type 2. R. at 32-36. The remanded claims are not before the Court. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board cannot be reviewed by the Court).
On May 2, 2019, the Court vacated the September 28, 2017, Board decision that found no CUE in a May 1989 Board decision, and remanded the vacated matter for further proceedings. Additionally, the Court affirmed the portion of the Board’s decision that found no CUE in the March 30, 1979, rating decision. In the memorandum decision, the Court stated that, based on his informal brief, the pro se appellant explicitly did not challenge the Board’s dismissal of his contention that a March 31, 1971, Board decision should be revised or reversed based on CUE.
On May 8, 2019, the appellant filed a motion for reconsideration. In his motion for reconsideration, the appellant stated that he “did not withdraw any CUE claims from 1971 to 2019.” Motion for Reconsideration at 1. Upon consideration of the foregoing, the appellant’s May 8, 2019, motion for reconsideration is granted; the May 2, 2019, memorandum decision is withdrawn; and this decision is issued in its stead.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1968 to September 1969. R. at 3650. In January 1970, a VA regional office (RO) granted him service connection for hearing loss with tinnitus and assigned a noncompensable disability rating. R. at 14538. The appellant disagreed with the decision and asserted that he was experiencing severe headaches and ringing in his ears, which was affecting his employment. R. at 14526.
In March 1970, the RO granted service connection for residuals of trauma with resultant subjective headaches and tinnitus and assigned a 10% disability rating for “headaches and tinnitus due to trauma” under Diagnostic Code (DC) 9304, effective October 1, 1969. R. at 14524; see
CUE was present in (1) the May 16, 1989, Board decisions; (2) the March 31, 1971, Board decision; (3) and the March 30, 1979, rating decision.
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38 C.F.R. § 4.124, DC 8045 (1970) (providing that “[p]urely subjective complaints, such as headache, dizziness, insomnia, tinnitus, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304”); 38 C.F.R. § 4.132, DC 9304 (1970) (providing a 10% disability rating for “[s]light impairment of social and industrial adapatability”).
In March 1971, the Board denied a disability rating in excess of 10% for headaches and tinnitus under DC 9304, noting that ratings in excess of 10% for brain disease as a result of trauma are not assignable in the absence of a diagnosis of chronic brain syndrome associated with brain trauma, and therefore, the appellant had been awarded the maximum evaluation permitted by the rating schedule for his headaches and tinnitus. R. at 14466-71; see 38 C.F.R. § 4.124, DC 8045 (1970).
In November 1978, a VA examiner diagnosed the appellant with non-psychotic organic brain syndrome (OBS), brain trauma residuals, and explosive personality disorder. R. at 14125-26. The examiner found that the appellant “had difficulty holding a job” and “could not sometimes work due to his head problems,” but was “also working for a band as a singer.” R. at 14125.
A January 1979 rating decision characterized the appellant’s disability as “non-psychotic OBS with brain trauma and tinnitus,” and the RO awarded a 50% disability rating under DC 9304, effective October 17, 1978. See 38 C.F.R. § 4.124, DC 8045 (1978) (providing that “[r]atings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma”); 38 C.F.R. § 4.132, DC 9304 (1978) (providing a 50% disability rating under VA’s general rating formula for OBS when there is “[c]onsiderable impairment of social and industrial adaptability”). R. at 14128.
In a March 30, 1979, rating decision, the RO stated that the neurological examination “casts some doubt on the retention of the diagnosis” of OBS, and reduced the appellant’s disability rating for “[OBS], non[-]psychotic, residuals of trauma” under DC 9304 from 50% to 30%. R. at 14085-86. The RO also denied a total disability rating based on individual unemployability (TDIU). Id.
Following development, a May 16, 1989, Board decision denied a disability rating in excess of 30% for OBS under DC 9304; a disability rating in excess of 10% for tinnitus with headaches under DC 6260; a disability rating in excess of 10% for left ear hearing loss; and a
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disability rating in excess of 10% for a scar. R. at 11839-46. The Board stated that the appellant’s 10% disability rating for tinnitus “is the highest rating provided under the applicable rating criteria,” and denied a separate rating for headaches based upon its conclusion that “any impairment from headaches, as well as dizziness and insomnia, [is] contemplated by the rating now in effect for [OBS].” R. at 11844.
In April 2010, following development on these issues and the appellant’s other claims not currently before the Court, the Board issued a decision finding CUE in the March 30, 1979, rating decision. R. at 7965-73. The Board noted that rating decision improperly reduced the appellant’s disability rating from 50% to 30% for OBS, and the Board restored the appellant’s 50% disability rating, effective July 1, 1979. R. at 7967.
The appellant appealed, and on January 25, 2012, the Court affirmed the April 2010 Board decision in part, vacated the decision in part, and remanded the vacated matter to the Board for further adjudication. Mathis v. Shinseki, No. 10-2052, 2012 WL 204259 (Vet. App. Jan. 25, 2012) (mem. dec.), judgment aff’d, appeal dismissed in part, 494 F. App’x 78 (Fed. Cir. 2012), and subsequent mandamus proceeding, No. 12-3575, 2013 WL 53745 (Vet. App. Jan. 4, 2013) (order), adhered to, No. 12-3575, 2013 WL 512745 (Vet. App. Feb. 13, 2013) (per curiam order).
On December 19, 2013, the Board denied a disability rating in excess of 10% for tinnitus with headaches; did not assign two disability ratings for bilateral tinnitus; and did not grant a separate disability rating for headaches. R. at 4083-99. In a separate decision, in order for VA to issue a Statement of the Case, the Board remanded the appellant’s claim that CUE was present in the March 1979 denial of TDIU. R. at 4100-02.
The Court again addressed the matter in a September 10, 2015, memorandum decision, vacating the December 2013 Board decision in part and remanding the vacated portion of the matter for further adjudication. Mathis v. McDonald, No. 16-3132, 2016 WL 6819040 (Vet. App. Nov. 18, 2016) (mem. dec.); R. at 2947-69. Specifically, in that memorandum decision, the Court determined that the Board had incorrectly found that the regulatory provisions pertaining to the appellant’s OBS, headaches, and tinnitus were correctly applied in 1989, and that the Board had failed to discuss whether this error would have manifestly changed the outcome of the decision.
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R. at 2959-60. Thus, we remanded the matter for an adequate statement of reasons or bases. R. at 2960.
Following development, the Board issued the two decisions on appeal, which, among other things, determined there was no CUE in a May 1989 Board decision, nor in a March 1979 rating decision. R. at 1-38. As related to the May 1989 Board decision, the Board stated that “it does appear that the Board in its May 1989 decision did not consider all of the regulatory provisions extant at the time of the decision.” R. at 7. However, the Board determined that 38 C.F.R. § 4.132 and Note 2 preceding the regulatory provision do not apply here because the appellant’s tinnitus, headaches, and OBS “are of etiology common to trauma of the head,” and not “common to the mental disorder.” R. at 8 (emphasis omitted). Thus, the Board concluded that no CUE was present in the May 1989 Board decision.
Additionally, the Board stated that in April 2010, it found CUE in the March 1979 decision and restored a 50% disability rating for the appellant’s OBS. R. at 28. The decision on appeal then noted that with the restoration, the appellant had a combined 60% schedular disability rating and met the schedular criteria for TDIU under the version of § 4.16(a) in effect at the time of the rating decision. R. at 29. However, the Board decision on appeal concluded that no additional CUE was present in the 1979 rating decision because evidence in the record at the time, including the November 1978 VA psychiatric examination, did not indicate that the appellant was incapable of securing or following a substantially gainful occupation at the time of the 1979 rating decision. R. at 30. This appeal followed.
II. ANALYSIS
A. CUE in the May 16, 1989, Board Decision
A CUE motion is a collateral attack on a final RO or Board decision. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). CUE is established when the following conditions are met: First, 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. 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,
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3 Vet.App. 310, 313-14 (1992) (en banc); see also Hillyard v. Shinseki, 24 Vet.App. 343, 349 (2011). Finally, the commission of 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. Russell, 3 Vet.App. at 313-14; see Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting “manifestly changed the outcome” language in Russell); see also King v. Shinseki, 26 Vet.App. 433, 442 (2014) (citing Russell, 3 Vet.App. at 313-14) (“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.”).
“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.” Fugo v. Brown, 6 Vet.App. 40, 43 (1993). “[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. Id. at 44. The Court’s review of the Board’s determination on the existence of 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. 38 U.S.C. § 7261(a)(3); Russell, 3 Vet.App. at 315. That standard of review, however, “‘contemplates de novo review of questions of law,'” including whether an applicable law or regulation was correctly applied. Joyce v. Nicholson, 19 Vet.App. 36, 43 (2005) (quoting Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004)).
A remand by the Court “confers on the veteran . . . , as a matter of law, the right to compliance with the remand orders,” and the Board itself errs when it fails to ensure compliance with the terms of such a remand. Stegall v. West, 11 Vet.App. 268, 271 (1998). Although the Secretary is required to comply with remand orders, it is substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination “more than substantially complied with the Board’s
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remand order”). In making its determinations, the Court is required to take due account of the rule of prejudicial error. 38 U.S.C. § 7261(b); Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004). As with all its material determinations of law or fact, the Board’s determinations must be supported by an adequate statement of reasons or bases; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
This Court previously addressed this matter in a September 10, 2015, memorandum decision, vacating a December 19, 2013, Board decision in part and remanding the vacated matter for further adjudication. Mathis v. McDonald, No. 14-0314, 2015 WL 5255331 (Vet. App. Sept. 10, 2015) (mem. dec.); R. at 2947-69. The Court determined that in 1989, the Board erred by incorrectly applying the regulatory provisions in effect at the time of its decision. Specifically, the Court determined that the version of DCs 8045 and 9304 in effect at the time of the May 1989 Board decision provided that brain disease due to trauma was rated under DC 8045 as follows:
“Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304. This 10[%] disability rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma.”
2015 WL 5255331, at*8 (quoting 38 C.F.R. § 4.124a, DC 8045 (1988)).
We further noted that organic mental disorders listed in DCs 9300-9325 were rated under the General Rating Formula for Organic Mental Disorders. Id. (citing 38 C.F.R. § 4.132, DC 9300-9325 (1988)). The General Rating Formula for Organic Mental Disorders provided disability ratings from 0% to 100% depending on the level of impairment in social and industrial adaptability. § 4.132, DC 9300-9325 (1988). The rating criteria contained the following note, which preceded the general rating formula:
An organic mental disorder, as defined in the American Psychiatric Association manual, is characterized solely by psychiatric manifestations. However, neurological or other manifestations of etiology common to the mental disorder may be present, and if present, are to be rated separately as distinct entities under
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the neurological or other appropriate system and combined with the rating for the mental disorder.
§ 4.132, Note 2 (1988) (emphasis added).
We stated that this note “specifically instructed the rating specialist to rate ‘neurological or other manifestations of etiology common to the mental disorder . . . separately as distinct entities under the neurological or other appropriate system and combined with the rating for the mental disorder,'” Mathis v. McDonald, No. 14-0314, 2015 WL 5255331, at *9 (emphasis added) (quoting 38 C.F.R. § 4.132, Note 2 (1988)), and that “[n]either the Board decision . . . nor the May 1989 decision challenged for CUE addressed note 2 when assessing whether the appellant was entitled to a disability rating for headaches separate from his tinnitus and OBS.” Id.
The Court found this failure to apply the relevant regulatory provisions undebatable error because it was undisputed that the appellant’s OBS, tinnitus, and headaches share a common etiology. Id. We then reversed the Board’s determination and stated that the appellant’s tinnitus and headaches were to be rated separately as distinct entities. Id. We noted that, for an appellant to prevail on a CUE motion, “the movant must also demonstrate that the error manifestly changed the outcome of the decision being attacked for CUE,” id. (citing Russell, 3 Vet.App. at 313-14), and that
[b]ecause the Board incorrectly found that the regulatory provisions were correctly applied in 1989, the Board did not analyze the lay and medical evidence of record addressing the severity of the appellant’s headaches or otherwise explain its finding that the appellant failed to demonstrate that the outcome would have been manifestly different. This failure renders the Board’s statement of reasons or bases inadequate to facilitate review and requires that the matter be remanded for further adjudication consistent with this decision.
Id. at *10. Accordingly, the Court remanded the matter for the Board to determine whether there would have been a manifestly changed outcome in the 1989 Board decision had that Board correctly applied the proper regulations. Id.
In the decision here on appeal, the Board revisited the 1989 Board’s regulatory application and stated that “it does appear that the Board in its May 1989 decision did not consider all of the regulatory provisions extant at the time of the decision.” R. at 7. However, the Board determined
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that 38 C.F.R. § 4.132 and Note 2 do not apply here because the appellant’s tinnitus, headaches, and OBS “are of etiology common to trauma of the head,” and not “common to the mental disorder.” R. at 8 (emphasis omitted).
The Board blatantly disregarded the Court’s remand instructions and provided inadequate reasons or bases for doing so. The Court explicitly stated that the Board should apply 38 C.F.R. § 4.132 and Note 2, but for reasons beyond this Court’s comprehension, the decision on appeal circumvented our instructions and attempted to readjudicate the question and proffer its own rationale as to why 38 C.F.R. § 4.132 and Note 2 do not apply in this case. The Board was only to assess whether the error in failing to properly apply the regulation and note resulted in a manifestly changed outcome. Because an appellant has a right to the Board’s compliance with the Court’s remand instructions, the Board erred, and the Court will remand the matter for the Board to properly apply the regulatory provisions as it was instructed to do in our previous memorandum decision. See Stegall, 11 Vet.App. at 271.
Given this disposition, the Court need not, at this time, address the other arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him”). The appellant is free on remand to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
B. CUE in the March 30, 1979, Rating Decision
Additionally, the appellant argues CUE was present in a March 1979 rating decision that, in part, reduced the appellant’s disability rating for OBS from 50% to 30%, and denied entitlement to TDIU because he did not meet the schedular criteria for TDIU based on the reduction in his non-psychotic OBS. See Appellant’s Br. at 10; R. at 17. He asserts this was error because, in an
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April 2, 2010, decision, the Board found that the March 1979 rating decision’s reduction was improper and restored the appellant’s 50% disability rating for OBS, effective July 1, 1979. See Appellant’s Br. at 10; R. at 7967. Construed broadly, he argues that if the rating decision had not improperly reduced his OBS rating from 50% to 30%, he would have met the schedular criteria for TDIU, and thus would have been entitled to a total disability rating. Id.
The Secretary asserts that the appellant fails to show the March 1979 rating decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Secretary’s Br. at 15. Specifically, the Secretary contends that, although it was error for the 1979 Board to deny TDIU based on the appellant not meeting the schedular rating criteria, it is not undebatable that the appellant was not capable of securing or following a substantially gainful occupation at the time of the decision, and therefore the appellant’s assertions amount to little more than factual disagreements with the Board’s determinations. Id. at 13-15.
In the decision on appeal, the Board laid out the applicable regulatory provisions in place at the time of the 1979 rating decision:
To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100[%] disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60[%] or more, or, if more than one disability, at least one disability ratable at 40[%] or more and a combined disability rating of 70[%]. 38 C.F.R. § 4.16(a) (1978). For the purpose of establishing one 60[%] disability, or one 40[%] disability in combination, disabilities resulting from common etiology are sufficient. Id.
R. at 29.
The Board then stated that the appellant had a combined 60% schedular disability rating and met the schedular criteria for TDIU under the version of § 4.16(a) in place at the time of the rating decision. Id. However, the Board found that the appellant’s arguments could not establish CUE because “[w]hen there is evidence both pro and con on the matter, it is impossible for a [v]eteran to succeed in showing that the result would have been manifestly different as dictated in Fugo,” see Simmons v. West, 14 Vet.App. 84, 88 (2000), and in this case, even with restoration of the 50% disability rating for the appellant’s OBS, the evidence existing at the time, including a November 1978 VA psychiatric examination, showed that the appellant “had difficulty holding a
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job, that he could not sometimes work due to his head problems, but that he was also working for a band as a singer.” R. at 30 (emphasis in original). Thus, the Board concluded that “it was not undebatable that the Veteran was not capable of securing or following a substantially gainful occupation at the time of the March 30, 1979 rating decision.” Id. (emphasis in original).
The Court finds the Secretary’s argument persuasive. As noted in the previous section, in order for an appellant to prevail on their CUE challenge, 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, Russell, 3 Vet.App. at 313-14, and it must be “absolutely clear that a different result would have ensued,” Fugo, 6 Vet.App. at 44. So long as the Board articulates a satisfactory explanation for its decision, “including a rational connection between the facts found and the choice made,” the Court must affirm. Lane v. Principi, 16 Vet.App. 78, 83 (2002). Here, the Court cannot say that the Board’s determination that there was no CUE in the 1979 rating decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law because there was evidence in the record at the time of the 1979 decision showing the appellant’s ability to work. Specifically, the Board highlights, and the record confirms, that the November 1978 VA psychiatric examiner stated that the appellant had difficulty holding a job and sometimes had trouble working because of his head problems, but that he was working for a band as a singer. See R. at 30, 14125-26. Although unemployability is not required for TDIU, see Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (stating that an award of TDIU does not require a showing of 100% unemployability), because there is evidence in the record suggesting employment, it is not undebatable that the appellant was incapable of securing or following a substantially gainful occupation at the time of the March 1979 rating decision. Further, to the extent that the appellant’s arguments could be read to contend that VA improperly weighed the evidence in the 1979 rating decision, assertions of improper weighing of the evidence cannot constitute CUE. See Damrel, 6 Vet.App. at 246.2
2 The Board also notes that the appellant appears to contend that TDIU should be “reinstated” as a result of the OBS rating restoration, R. at 28; however, the Court agrees that nothing in the Record indicates the appellant was ever awarded TDIU previously, and we will not address that contention further.
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Accordingly, despite the erroneous reduction of his schedular disability rating in the March 1979 rating decision, the Court cannot conclude that this error would have manifestly changed the outcome as related to the appellant’s TDIU claim, and the Board’s decision on appeal was not arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, or unsupported by adequate reasons or bases. 38 U.S.C. § 7261(a)(3); Russell, 3 Vet.App. at 315. Therefore, we will affirm that portion of the Board decision concluding CUE was not present in the March 1979 rating decision.
C. CUE in the March 31, 1971, Board Decision
In his informal brief, the appellant stated that
[e]ntitlement to [service connection for] osteoarthritis, fatigue syndrome, eye disorder, right hearing loss, hypertension, glaucoma, [increased compensation claim for] diabetes 2, hep[atitis] C, left hearing loss, rating increase for scars, whether a March 31, 1971[,] for hearing [sic], all these claims the veteran withdraw[s] and will refill after the remands are met.
Attachment to Appellant’s Informal Br. at 6 (emphasis added). In this Court’s May 2, 2019, memorandum decision, the Court included the pro se appellant’s motion alleging CUE in the March 31, 1971, Board decision in the claims that he explicitly did not challenge. However, in the appellant’s motion for reconsideration, he explicitly states that he “does not withdrawal [sic] any CUE claims from 1971 to 2019.” Motion for Reconsideration at 1. Despite the apparent inconsistencies between the pro se appellant’s informal brief and his motion for reconsideration, we will take his motion for reconsideration at face value and find that he did not mean to withdraw his appeal of the part of the Board’s decision that dismissed without prejudice his assertion of CUE in the March 31, 1971, Board decision. See Rivera v. Shinseki, 654 F.3d 1377, 1381-82 (Fed. Cir. 2011) (reversing a Court decision that required a veteran to make a specific statement regarding the issue he wished to appeal even though his desire to appeal that issue was conveyed by clear implication in his correspondence); see also Hodge v. West, 155 F.3d 1356, 1262 (Fed. Cir. 1998) (noting the “uniquely pro-claimant” character of the veterans benefits system and requiring VA “to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits”); Ingram v. Nicholson, 21 Vet.App. 232, 256 (2007) (explaining that “a sympathetic
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reading of the appellant’s pleadings cannot be based on a standard that requires legal sophistication beyond that which can be expected of a lay claimant”).
However, even when examining the appellant’s informal brief anew, the Court finds that he has not met his burden of persuasion. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (“An appellant bears the burden of persuasion on appeals to this Court to show that such reliance was in error.”), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000); Berger v. Brown, 10 Vet.App. 166, 169 (1997) (stating that “the appellant . . . always bears the burden of persuasion on appeals to this Court”). Other than the above sentence that the Court originally construed as a withdrawal, the only other potential reference to CUE in a March 1971 decision appears on page 10 of the appellant’s informal brief, wherein he states that the Board “[f]ailed to apply 38 C.F.R. [§§] 4.1 [and] 4.2 [and] 4.7 in rating of March 31, 1970-71.” Those regulations address the “[e]ssentials of evaluative rating,” “[i]nterpretation of examination reports,” and when to take the “[h]igher of two evaluations,” respectively. Though the Court has a duty to construe a pro se appellant’s arguments liberally, pro se appellants still must raise specific arguments demonstrating perceived error in the Board’s decision. Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (“The Court requires that an appellant plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant’s arguments.”), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008). The Court cannot manufacture arguments on behalf of the appellant. Because the appellant’s citation to multiple general regulations does not evince any specific arguments for the Court to address regarding why the Board erred in dismissing without prejudice his CUE motion, the Court will not address this matter further. Locklear v. Nicholson, 20 Vet.App. 410 (2006). Accordingly, the Court will affirm the Board’s decision to dismiss without prejudice the appellant’s CUE motion as to the March 31, 1971, Board decision.
D. Assertions of Delay, Constitutional Violations, and Other Arguments
To the extent that the appellant alleges that VA errors in the adjudication of his claims constitute violations of his constitutional and due process rights, Attachment to Informal Br. at 8-9, the Court will not address mere assertions of constitutional impropriety without legal support. Brewer v. West, 11 Vet.App. 228, 236-37 (1998) (citing Gov’t & Civic Emps. Org. Comm., CIO v.
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Windsor, 353 U.S. 364, 366 (1957) (“Federal courts will not pass upon constitutional contentions presented in an abstract rather than in a concrete form.”)).
The appellant’s assertions regarding unadjudicated claims to include a traumatic brain injury and PTSD are also unpersuasive. The Court has already addressed the appellant’s contentions under docket numbers 14-0314 and 16-3132. Because the Court already decided these issues, we will not address them further. See Browder v. Brown, 5 Vet.App. 268, 270 (1993) (holding that appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case). However, if the appellant believes that VA has failed to adjudicate a claim, he should request that VA process it. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006).
Lastly, the appellant raises various allegations of VA error that are outside the Court’s jurisdiction. Pursuant to 38 U.S.C. § 7252 the Court’s jurisdiction is generally limited to review of final Board decisions. Accordingly, to the extent that the appellant alleges error regarding matters that were not adjudicated in the September 2017 decisions on appeal, the Court lacks jurisdiction to consider these matters and they will not be addressed. See 38 U.S.C. § 7252(a); Ledford v. West, 136 F.3d 776, 779 (Fed. Cir.1998) (holding that “the [C]ourt’s jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed”); see also Russell, 3 Vet.App. at 315 (stating that “[t]he necessary jurisdictional ‘hook’ for this Court to act is a decision of the [Board] on the specific issue of ‘[CUE]'”).
E. Pending Motions
The Court notes that there are outstanding motions dated June 13, 2018; June 22, 2018; and July 31, 2018. The Court construes those “motions” as reiterations of the appellant’s substantive litigation positions. Because these amount to little more than disagreement with the Secretary’s positions, the Court will direct the Clerk of the Court to file the documents, and the Court will deny the motions.
Additionally, on September 26, 2018, the appellant filed a motion for oral argument. In his motion, the appellant contends that oral argument is necessary because the Secretary refuses to apply the law and regulations correctly, instead placing him in an endless cycle of remands. Because the Court is not persuaded that oral argument would materially assist it in the disposition
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of this appeal, the motion for oral argument will be denied. See Janssen v. Principi, 15 Vet.App. 370, 379 (2001); see also U.S. VET. APP. R. 34(b) (“Oral argument normally is not granted on . . . matters being decided by a single Judge.”).3
To the extent that the appellant’s other pieces of correspondence could be construed as motions, the Court will deny those motions.
III. CONCLUSION
Upon consideration of the foregoing, the appellant’s May 8, 2019, motion for reconsideration is granted; the May 2, 2019, memorandum decision is withdrawn; and this decision is issued in its stead. As to the appellant’s claims regarding right ear hearing loss, glaucoma, hepatitis C with cirrhosis, left ear hearing loss, and a residual scar of a GSW of the left ear and left side of the head, the appellant explicitly does not challenge the Board’s determinations; therefore, those claims are DISMISSED. See Pederson, 27 Vet.App. at 285. After consideration of the appellant’s and the Secretary’s pleadings, and a review of the record, the September 28, 2017, Board decisions are AFFIRMED IN PART and VACATED IN PART and the vacated matter is REMANDED for further proceedings consistent with this decision. The Clerk of the Court is directed to file the document received from the appellant on July 2, 2018, as a motion. That motion is granted. The appellant’s pieces of correspondence dated June 13, 2018, June 22, 2018, and July 31, 2018, are also accepted as motions. Those motions are denied. All other pieces of correspondence that could be construed as motions are also denied.
DATED: June 21, 2019
3 The Court also notes that on June 22, 2018, the appellant submitted a document styled as a “petition for extraordinary relief,” and on July 2, 2018, the appellant filed a motion asking the Court to “please accept the petition or deny it, but don’t put it [under] Docket [No.] 17-3707. It [is] a petition.” Rule 21 of this Court’s Rules of Practice and Procedure governs petitions. The Court should have assigned it its own docket number. Accordingly, the Court will grant the July 2, 2018, motion and direct the Public Office to open the appellant’s petition for extraordinary relief under a separate docket number. The Court reminds the appellant that all petitions that he files must comply with our order from November 18, 2016, under Docket No. 16-3132.
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Copies to:
Geiry L. Mathis
VA General Counsel (027)

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