King v. Shinseki, 26 Vet.App. 433 (Feb. 26, 2014)
CLEAR AND UNMISTAKABLE ERROR (CUE)
The RO’s failure to mention favorable evidence in a pre-1990 rating decision cannot be CUE because there was no reasons-or-bases requirement prior to 1990, and a finding of CUE would require that the RO actually denied the existence of the favorable evidence, not just that it failed to mention the evidence. 26 Vet.App. at 440 (citing Bouton v. Peake, 23 Vet.App. 70, 71 (2008)). A “manifest change in the outcome of the determination means that, absent the clear and unmistakable error, the benefit sought would have been granted at the outset” – and not that the RO would have been required to send a medical opinion back for clarification. Id. at 441.
The veteran was awarded service connection for a mental health condition in 1973, and assigned a 10% disability rating. The veteran did not appeal the decision and it became final. In 2006, the veteran sought to revise the 1973 decision based on CUE by asserting that the RO erred by failing to consider favorable private medical evidence that was in the record at the time of the decision. The RO determined that there was no CUE in the 1973 decision, and the Board agreed. The veteran appealed to the CAVC, and the parties agreed to a joint motion for remand because the Board applied the incorrect rating criteria. On remand, the Board again determined that there was no CUE in the 1973 decision.
On appeal, the veteran first argued that his due process right to a fair hearing was violated because the RO failed to consider the favorable evidence. The Court rejected this argument, finding that there was no indication that the favorable evidence was “impermissibly altered,” as was the case in Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), or that the RO “concealed or failed to consider that report or that VA otherwise failed to accord him due process.” Id. at 437-38.
The veteran next argued that even though the favorable medical report was in the record prior to the decision, it was not before the adjudicator because the rating decision did not mention it. He asserted that “if the missing doctor’s report had been considered, a reasonable person’s assessment would have been considerably different.” Id. at 438-39. The Court rejected this argument, noting that the VA did not have a reasons-or-bases requirement prior to 1990, and there was no indication on the face of the 1973 decision that the RO failed to consider that evidence. Id. at 439. The Court found the veteran’s reliance on Bouton unpersuasive because the RO, in that case, denied the existence of the favorable evidence, which was not the case here. Id.
The Court discussed the requirement that an alleged error must have resulted in a “manifest change of the outcome” of the decision in order to be CUE. Id. at 440-42. The Court found that a manifest change is not whether the RO would have been required to send evidence back for clarification, but rather that the veteran “undoubtedly would have been granted [a higher rating].” Id. at 441. The Court also rejected the veteran’s “reasonable person” argument, finding that the standard for CUE is that the error must be “undebatable,” not whether it would be “reasonable” to conclude that the outcome would be different. Id. at 442.