Veteranclaims’s Blog

January 9, 2022

Single Judge Application; the DRO may not revise an initial decision to be less favorable to the veteran unless the prior decision contains a clear and unmistakable error (CUE). 38 C.F.R. § 3.2600(d)-(e). Section 3.2600 expressly references 38 C.F.R. § 3.105 and the CUE standard contained therein. Id.; The Board, like the DRO, reviews RO decisions de novo but cannot revise favorable findings in a prior decision without finding CUE. 38 C.F.R. § 3.104(c), 20.801(a). This was not always the case, but, as of February 19, 2019, this is now the rule. Compare Anderson v. Shinseki, 22 Vet.App. 423, 428 (2009) (noting that the Board’s jurisdictional statute “contains no limitations on the Board’s ability to review favorable findings”). The Board was required to conduct a CUE analysis, but did not.;

Filed under: Uncategorized — Tags: — veteranclaims @ 2:00 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2077
EDWARD T. WESTERVELT, JR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Marine Corps veteran Edward Westervelt requests reconsideration of a July
30, 2021, memorandum decision that remanded his claim for an increased rating for migraines and
affirmed the remainder of the November 2019 Board decision on appeal. Mr. Westervelt appealed
a November 2019 Board decision denying a rating in excess of 10% for migraines and separate
ratings for his PTSD and traumatic brain injury (TBI).*
The July memorandum decision accepted the Secretary’s concession that the Board did not
provide an adequate statement of reasons or bases for denying a rating above 10% for migraines
and remanded that issue to the Board for readjudication. The previous decision also affirmed the
Board’s decision to assign a singular rating for the veteran’s TBI and PTSD symptoms. Upon
reconsidering the prior decision, the Court determines that the Board applied the incorrect legal
standard in assessing whether separate ratings for TBI and PTSD were warranted.
The Court grants Mr. Westervelt’s motion and issues a new ruling as to the issue of whether
he is entitled to separate ratings for his PTSD and TBI, but declines to disturb the remainder of the
original decision. Thus, the Court vacates the July 30, 2021, memorandum decision and issues this
*Mr. Westervelt has not challenged his assigned rating of 70% for PTSD and TBI so the Court will deem this
issue abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc).
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one is its place. The Court vacates the portion of its previous decision addressing the Board’s
decision to assign a combined rating for PTSD with TBI and remands that issue for readjudication.
I. MIGRAINES
Mr. Westervelt served from 2000 to 2004. During service, he was knocked off of a vehicle
and lost consciousness. He developed migraine headaches after the incident and filed a claim for
disability compensation. He was granted service connection and assigned an initial 0% rating. In
2015, he filed a request to increase his migraine rating and VA assigned a 10% rating in 2017. Mr.
Westervelt promptly appealed his rating to the Board, which denied a rating higher than 10%.
The Board cited the following four pieces of evidence to support its decision: (1) a 2017
VA examination, (2) a 2018 VA examination, (3) a 2018 private medical opinion, and (4) Mr.
Westervelt’s 2019 testimony. The 2017 examiner noted the veteran’s report of three to four
headaches per week, light and noise sensitivity, and nausea. He found that the veteran experienced
characteristic prostrating attacks of migraine pain once every two months, but determined that such
attacks were not productive of severe economic inadaptability. The 2018 examiner concluded that
the veteran did not experience characteristic prostrating attacks of migraine pain. The private
examiner reported that the veteran experienced severe headaches, with light sensitivity, almost
every day. He opined that the veteran’s migraines should be rated at 50%—the highest available
rating for migraines. Finally, in a 2019 hearing before the Board, the veteran testified to having
two or three migraines per week, during which he cannot do anything but recede to the darkest
place in his house until the migraine subsides. He explained that he missed several days of work
due to his migraines and, if a migraine occurs while he is at work, he is forced to leave early.
Migraines are rated under Diagnostic Code (DC) 8100. 38 C.F.R. § 4.124a (2021). A 10%
rating is appropriate when the veteran experiences “characteristic prostrating attacks averaging one
in 2 months” in recent months. Id. A 30% rating is warranted for veterans experiencing migraine
attacks “occurring on an average of once a month” and a 50% rating is available for veterans with
“very frequent completely prostrating and prolonged attacks productive of severe economic
inadaptability.” Id. When assigning a rating, the Board must provide a statement of reasons that is
adequate to inform the claimant of the precise reason for the Board’s decision and thorough enough
to facilitate the Court’s review. English v. Wilkie, 30 Vet.App. 347, 352 (2018).
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The Board assigned a 10% rating, finding “evidence of characteristic prostrating attacks of
migraine pain.” R. at 9. The Board recited Mr. Westervelt’s reported symptoms, including two or
three migraines a week with light sensitivity, and acknowledged “evidence of characteristic
prostrating attacks of migraine pain” between March 2015 and May 2017. Id. However, the Board
found that the evidence demonstrated that the veteran’s migraines only occurred once every two
months. The Secretary and the veteran agree that this statement is contrary to the Board’s own
findings, and the veteran’s sworn testimony, and that these discrepancies require remand so the
Board can issue a new statement of reasons or bases. See Johnson v. Wilkie, 30 Vet.App. 245, 254
(2018) (the Board must, in its statement of reasons or bases, discuss any discrepancies between
the record evidence and its factual findings).
Because the Board’s statement of reasons or bases is contrary to the evidence of record and
internally inconsistent, the Court accepts the Secretary’s concession of error and remands this
portion of the case. On remand and consistent with the foregoing, the Board should address
whether the veteran experienced characteristic prostrating migraine attacks during the relevant
appeal period.
II. PTSD & TBI
Mr. Westervelt suffered a TBI during his service in Iraq and was granted service connection
for that condition in 2008. He filed a service-connection claim for PTSD in May 2016, which was
granted in 2017 with an initial rating of 30%. The 2017 rating decision relied on a 2017 VA exam
that found Mr. Westervelt’s PTSD to be directly related to service and that his symptoms were
consistent with a 30% rating.
Mr. Westervelt filed a Notice of Disagreement and argued that he was entitled to a higher
rating for PTSD. He opted to have his decision reviewed by a decision review officer (DRO). The
DRO has the authority to conduct a de novo review of the regional office’s (RO) decision. 38
C.F.R. § 3.2600(a) (2021) (“The reviewer will consider all evidence of record and applicable law,
and will give no deference to the decision being reviewed.”). However, the DRO may not revise an initial decision to be less favorable to the veteran unless the prior decision contains a clear and unmistakable error (CUE). 38 C.F.R. § 3.2600(d)-(e). Section 3.2600 expressly references 38 C.F.R. § 3.105 and the CUE standard contained therein. Id.
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CUE is a specific type of error that is obvious upon review and that compels the conclusion
that the result would have been manifestly different had the error not occurred. 38 C.F.R. §
3.105(a) (2021). CUE has three elements: (1) the adjudicator either ignored the correct facts of
record or incorrectly applied statutes or regulations in effect at the time; (2) the alleged error was
undebatable, not merely a disagreement as to how the facts were weighed or the law was applied;
and (3) the commission of the alleged error, at the time it was made, manifestly changed the
outcome of the decision at issue. Young v. Wilkie, 31 Vet.App. 51, 56 (2019). This standard applies
whenever VA wishes to revise a favorable finding in a previous decision. 38 C.F.R. §§ 3.104(c), 3.2600(e). Grants of service connection and the assignment of a disability rating are favorable findings. See Murphy v. Shinseki, 26 Vet.App. 510, 515 (2014) (noting that awards of disability compensation are protected property interests and carry with them greater procedural protections than other favorable findings of fact).
On May 3, 2018, the DRO issued its decision finding CUE in the assignment of separate
ratings for TBI and PTSD. It explained that the initial rating decision, which relied upon the 2017
VA exam, had ignored a key portion of the examiner’s opinion wherein she expressed that she was
unable to “delineate the contribution of [PTSD] from TBI without mere speculation since the 2
disorders are concomitant.” R. at 888. The DRO reasoned that, because the 2017 examiner could
not delineate Mr. Westervelt’s PTSD symptoms from his TBI symptoms, the initial rating decision
committed CUE by rating PTSD separately.
The Board’s 2019 decision did not mention CUE or the applicable standard found in
§ 3.105. Instead, it reviewed the DRO’s decision de novo with a focus on determining which of the
available medical exams was most probative. The Board assessed a 2018 VA examination and a
2019 private examination and assigned greater value to the VA examination. The private medical
opinion held less probative value to the Board because the physician did “not explain his rationale
regarding the list of symptoms for PTSD and TBI and why they are attributable to a distinctive
diagnosis.” R. at 20. The Board also noted that each TBI symptom identified by the private
examiner (memory loss and disorientation as to time, place, person, or situation, chronic sleep
impairment) appears in DC 9411 for PTSD. Id.
The Board, like the DRO, reviews RO decisions de novo but cannot revise favorable findings in a prior decision without finding CUE. 38 C.F.R. § 3.104(c), 20.801(a). This was not always the case, but, as of February 19, 2019, this is now the rule. Compare Anderson v. Shinseki,
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22 Vet.App. 423, 428 (2009) (noting that the Board’s jurisdictional statute “contains no limitations on the Board’s ability to review favorable findings”). The Board was required to conduct a CUE
analysis, but did not.
Therefore, the Board’s decision must be remanded so that it may assess
whether the 2018 DRO decision properly found CUE in the 2017 rating decision. See Murphy, 26
Vet.App. at 513 (finding remand warranted where the Board applied the wrong law and undertook
the wrong analysis).
III. CONCLUSION
The motion for single-judge reconsideration is granted; the July 30, 2021, memorandum
decision is WITHDRAWN; and this decision is issued in its stead. Based on the foregoing the
Board’s November 26, 2019, decision is VACATED and REMANDED for readjudication
consistent with the foregoing.
DATED: October 7, 2021
Copies to:
Richard L. Frankel, Esq.
VA General Counsel (027)

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