Veteranclaims’s Blog

October 16, 2018

Single Judge Application; CUE; 38 C.F.R. § 3.344(a); 5yr rating protection; “likely to improve”; 38 C.F.R. § 3.344(c);

Excerpt from decision  below:

“The Board concluded that the April 1976 RO decision “was apparently based on a single
examination conducted in February 1976.” R. at 8. The Board acknowledged that, pursuant to 38 C.F.R. § 3.344(a), the RO could not in 1976 (and cannot today) reduce a disability rating that had been in place for five years or more “on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.” Even if a veteran’s symptoms “clearly reflect[ed]” “material improvement,” a reduction was not appropriate unless the “rating agency . . . consider[ed] whether the evidence ma[de] it reasonably certain that the improvement will be maintained under the ordinary conditions of life.” 38 C.F.R. § 3.344(a) (2018). The RO may only have avoided these responsibilities if it
concluded that the disability in question had not “stabilized” and was “likely to improve.” 38 C.F.R. § 3.344(c).
The RO did not apply these provisions in its 1976 decision. R. at 806. That is clear because
the RO recorded the regulatory provision that it did apply. Furthermore, even if § 3.344(a) did play a part in the RO’s decision, that decision on its face reveals that the RO applied the regulation incorrectly. The RO concluded that the appellant’s “nervous condition shows improvement.” Id.
It did not find that it showed sustained improvement that is likely to be maintained. It also did not make any findings consistent with § 3.344(c).

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2234
ARMANDO DIAZ, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

PIETSCH, Judge: The appellant, Armando Diaz, appeals through counsel a June 8, 2017,
Board of Veterans’ Appeals (Board) decision in which the Board denied his motion to reverse or revise an April 1976 rating decision on the basis of clear and unmistakable error (CUE). Record (R.) at 2-11. This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will reverse the Board’s decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from August 1967 until August 1969.
R. at 841. In November 1972, the VA regional office (RO) granted him entitlement to disability
benefits for schizophrenia and assigned his disorder a 30% disability rating for the period prior to
October 9, 1970, and a 100% disability rating beginning on that date. R. at 883-84.
2
In February 1976, a VA medical examiner issued an opinion describing the severity of the
appellant’s schizophrenia. R. at 809. In April 1976, the RO reduced the disability rating assigned
his disorder to 70% effective July 1, 1976. R. at 806.
Between 1976 and 1995, the RO awarded the appellant several temporary total disability
ratings for his psychiatric disorder, but did not return his permanent disability rating to 100%. R.
at 228-29. Finally, in September 1995, the Board increased the disability rating assigned to his
disorder to 100%. R. at 477-83. The RO implemented the Board’s decision in February 1996. R.
at 466-67.
In November 2010, the appellant asserted that the RO clearly and unmistakably erred by
reducing the disability rating assigned to his schizophrenia to 70% in its April 1976 decision and
moved for reversal or revision of that decision. R. at 230. In December 2010, the RO denied his
motion. R. at 224-29. In June 2016, the Board also declined to reverse or revise the April 1976
rating decision. R. at 97-104. The appellant appealed and, on November 28, 2016, the parties
filed a joint motion to vacate the Board’s decision and remand the matter on appeal for further
proceedings. R. at 22-27. On November 30, 2016, the Court granted the parties’ motion. R. at
28.
On June 8, 2017, the Board issued the decision presently under review. R. at 2-11.

II. ANALYSIS
To meet the high standard required to successfully prosecute a CUE challenge against a
final agency decision, a claimant must do more than disagree with “how the facts were weighed or evaluated” by the adjudicators who issued the decision. Russell v. Principi, 3 Vet.App. 310, 314(1992). The veteran must show that “[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.” Id. Any identified error must be “undebatable” and, “had it not been made, would have manifestly changed the outcome at the time it was made.” Id. Finally, a CUE analysis “must be based on the record and the law that existed at the time” of the decision under consideration. Id.
When the Court reviews a decision for CUE, it must view the evidence from the vantage
point of the adjudicators who issued that decision. Grover v. West, 12 Vet.App. 190, 111-12(1999); Damrel v. Brown, 6 Vet.App. 242, 245 (1994); Russell, 3 Vet.App. at 314. Furthermore,
3
the Court may only overturn the Board’s disposition of a veteran’s CUE theory if it is convinced that the Board’s conclusion is “arbitrary, capricious, an abuse of discretion, or not in accordance with the law.” 38 U.S.C. § 7261(a)(3)(A); Livesay v. Principi, 15 Vet.App. 165, 174 (2001) (en banc). A CUE decision is, however, not immune from the Board’s usual reasons or bases requirement.
The Board concluded that the April 1976 RO decision “was apparently based on a single examination conducted in February 1976.” R. at 8. The Board acknowledged that, pursuant to 38 C.F.R. § 3.344(a), the RO could not in 1976 (and cannot today) reduce a disability rating that had been in place for five years or more “on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.” Even if a veteran’s symptoms “clearly reflect[ed]” “material improvement,” a reduction was not appropriate unless the “rating agency . . . consider[ed] whether the evidence ma[de] it reasonably certain that the improvement will be maintained under the ordinary conditions of life.” 38 C.F.R. § 3.344(a) (2018). The RO may only have avoided these responsibilities if it concluded that the disability in question had not “stabilized” and was “likely to improve.”
38 C.F.R. § 3.344(c).
The RO did not apply these provisions in its 1976 decision. R. at 806. That is clear because the RO recorded the regulatory provision that it did apply. Furthermore, even if § 3.344(a) did play a part in the RO’s decision, that decision on its face reveals that the RO applied the regulation incorrectly. The RO concluded that the appellant’s “nervous condition shows improvement.” Id.
It did not find that it showed sustained improvement that is likely to be maintained. It also did not make any findings consistent with § 3.344(c).
The Secretary’s argument that the RO had no reasons or bases requirement in 1976 is
inapposite in the present context. The RO gave a statement of reasons or bases sufficient to convey
how it decided the appellant’s case. As the Board concluded, the RO relied entirely on the February
1976 opinion to reach its decision and did not consider any other evidence. Because it either
misapplied or did not apply the regulatory provision that governed the outcome of the appellant’s
case, it reached its decision under an incorrect standard concerning the level of improvement
necessary to warrant a reduction of benefits and thus committed an “undebatable” error sufficient
to constitute CUE. To the extent that the Board found otherwise, its finding is arbitrary, capricious,
an abuse of discretion, and otherwise not in accordance with law.
4
That conclusion, according to the appellant, warrants reversal of the Board decision on
appeal because it renders the 1976 RO decision void ab initio and thus manifestly incorrect. The
appellant’s argument is sufficiently supported and the Secretary chose not to respond to it. The
Court will exercise its authority to take the Secretary’s silence to be a concession that the appellant
is correct. See MacWhorter v. Derwinski, 2 Vet.App. 133, 135 (1992).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s June 8, 2017, decision is REVERSED. This case is remanded for the Board to reverse
the April 1976 RO decision and take appropriate remedial actions.
DATED: October 15, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

 

Powered by WordPress.com.