The appeal seeking revision of the February 2021 rating decision that denied entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder is denied.

Citation Nr: A26069918 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 241212-501900 DATE: July 30, 2026 ORDER The appeal seeking revision of the February 2021 rating decision that denied entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. In a final decision dated February 2021, a Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder. 2. The moving party has not alleged an error of fact or law in the February 2021 rating decision that denied entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error. CONCLUSION OF LAW 1. Clear and unmistakable error (CUE) in the February 2021 rating decision that denied entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder has not been established. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. § 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant and moving party in this case, served on active duty from September 1983 to August 1986. He also served in the Virginia Army National Guard from August 1986 to September 1989, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2024 higher level review (HLR) decision of a VA RO. In the April 2026 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Board direct review docket. While this would generally mean that the Board may only consider the evidence of record at the time of the August 2024 rating decision that was subject to HLR in the decision on appeal, new evidence cannot be considered in this decision because claims for revision based on clear and unmistakable error (CUE) must be based upon the facts and law that existed at the time of the prior decision. See 38 C.F.R. § 20.301; but see 38 C.F.R. § 3.105(a)(1)(iii). The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); see also Parker v. Principi, 15 Vet. App. 407, 412 (2002). CUE - Applicable Caselaw, Statutory, and Regulatory Provisions Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of 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. The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. A judicial decision that formulates a new interpretation of the law subsequent to a final VA decision cannot be the basis of a valid CUE claim. George v. McDonough, 142 S. Ct. 1953 (2022); Damrel v. Brown, 6 Vet. App. 242, 246 (1994). The applicability of this principle does not depend on the reason why the there was a change in interpretation. It is still a changed interpretation. Id. at 1960. Although a judicial decision must be given full retroactive effect in all cases that are still open on direct review, it does not affect decisions that are final. Smith v. West, 11 Vet. App. 134, 37-38 (1998); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995) ("new legal principles, even when applied retroactively, do not apply to cases already closed"). In Russell v. Principi, 3 Vet. App. 310, 315 (1992), the Court stated that once there is a final decision on the issue of "clear and unmistakable error" because the rating decision was not timely appealed, or because a BVA decision not to revise or amend was not appealed to this Court, or because this Court has rendered a decision on the issue in that particular case, that particular claim of "clear and mistakable error" may not be raised again. See 38 U.S.C. § 7105(b), (c) (NOD must be filed within one year from the date of mailing of the notice of the initial review or determination, otherwise the action or determination becomes final); 38 U.S.C. § 7252; 38 U.S.C. § 7266. It is res judicata. 38 U.S.C. § 7104(b) (formerly § 4004(b)). As reiterated by the Court in Link v. West, 12 Vet. App. 39, 44 (1998) (citing Russell, 3 Vet. App. at 315), "under the principle of res judicata, '[o]nce there is a final decision on the issue of [CUE]... that particular claim of [CUE] may not be raised again." Whether there was CUE in the February 2021 rating decision that denied entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder. In the present case, the appellant alleges CUE in a February 2021 rating decision that denied entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder. As an initial matter, the Board finds the allegation of CUE made by the Veteran and his representative in the March 2024 CUE motion is adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). The February 2021 rating decision became final, as the Veteran did not file a timely appeal of this decision, submit a supplemental claim with new and relevant evidence within one year of receiving notice of the decision, or request HLR within one year of receiving notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.2500, 20.202, 20.1103. At the time of the February 2021 rating decision, the law provided that the Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In the February 2021 rating decision, the RO granted service connection for an acquired psychiatric disorder and awarded an initial 30 percent rating under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, applicable to posttraumatic stress disorder (PTSD). Under such formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as de-pressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. Here, in the March 2024 CUE motion, the Veteran, through his representative, alleges that the RO erred in the February 2021 rating decision by not awarding an initial rating of 70 percent for the Veteran's acquired psychiatric disorder based on a January 2021 VA examination report noting the Veteran's difficulty adapting to stressful circumstances including work or a worklike setting, a July 2019 VA examination report noting the Veteran's acquired psychiatric disorder was characterized by near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and a June 2019 Disability Benefits Questionnaire (DBQ) noting the Veteran's difficulty in adapting to stressful circumstances, intermittent inability to perform activities of daily living, disturbance of mood and motivation, and occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, and thinking and/or mood. The Veteran argues that, had such error not been committed, the February 2021 rating decision manifestly would have granted an initial rating of 70 percent for an acquired psychiatric disorder. The review for CUE in a prior rating decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 3.105(a)(1). The February 2021 rating decision denied entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder based on findings that the overall evidentiary record showed that the severity of his disability most closely approximates the criteria for a 30 percent disability evaluation based on symptoms of suspiciousness, depressed mood, anxiety, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), and difficulty in establishing and maintaining effective work and social relationships. A higher rating of 50 percent was not warranted because there was no evidence showing occupational and social impairment with reduced reliability and productivity. The evidence considered in the February 2021 rating decision included the June 20219 claim, the July 2019 rating decision, the July 2020 HLR request, and the January 2021 VA examination report. The Board finds that the February 2021 rating decision is not clearly and unmistakably erroneous in finding that the evidence of record at that time did not demonstrate symptoms or impairments resulting in social and occupational impairment that would warrant an award of an initial rating in excess of 30 percent. The Veteran is correct that the January 2021 VA examination report noted the Veteran's difficulty adapting to stressful circumstances including work or a worklike setting, the July 2019 VA examination report noted the Veteran's acquired psychiatric disorder was characterized by near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and the June 2019 DBQ noted the Veteran's difficulty in adapting to stressful circumstances, intermittent inability to perform activities of daily living, disturbance of mood and motivation, and occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, and thinking and/or mood, and that these symptoms are consistent with a rating in excess of 30 percent under DC 9411. However, the January 2021 and July 2019 VA examiners both opined that the Veteran's acquired psychiatric disorder was best summarized as resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, which is consistent with the criteria for a 30 percent rating under DC 9411. Thus, there was competent evidence of record at the time of the February 2021 rating decision that weighed both for and against the award of a disability rating in excess of 30 percent for an acquired psychiatric disorder pursuant to DC 9411. As such, the Veteran is essentially disagreeing with how the RO weighed the medical evidence in the February 2021 rating decision. Disagreement as to how the facts were weighed or evaluated does not constitute CUE. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The Veteran has not alleged any other errors in the February 2021 rating decision. The Board acknowledges and appreciates the Veteran's honorable military service. However, despite the Veteran's well-articulated and sincere arguments presented in his March 2024 CUE motion, the Board is bound by the statutes and regulations discussed above. The Board concludes that the Veteran has not shown that the J February 2021 rating decision that denied entitlement to an initial rating in excess of 30 percent for an acquire psychiatric disorder contains an error of fact or of law that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error. Hence, the appeal must be denied. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.