Single Judge Application; § 20.801(a) does not apply in the context of legacy appeals; DRO may not revise an initial decision to be less favorable to the veteran unless the prior decision contains clear and unmistakable error (CUE). 38 C.F.R. § 3.2600(d)-(e);

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: The Secretary requests reconsideration of the Court’s October 7, 2021,
memorandum decision, which vacated and remanded the 2019 Board decision on appeal. The
Secretary takes issue with the portion of the October memorandum decision that determined that
the Board applied the incorrect legal standard when it denied separate ratings for Mr. Westervelt’s
PTSD and TBI. The Secretary asserts that two of the regulations cited in the October decision,
38 C.F.R. §§ 3.104(c) and 20.801(a), do not apply to Mr. Westervelt’s appeal, which falls under
the legacy system. The Secretary is correct that § 20.801(a) does not apply in the context of legacy
appeals, so the Court grants reconsideration to correct this error. On reconsideration, the Court
also finds that § 3.104(c) is not necessary to resolve this appeal and, therefore, will not address its
applicability to legacy appeals.
Thus, the Court vacates the October 7, 2021, memorandum decision and issues this one in
its place. The Secretary did not request reconsideration of the Court’s ruling concerning Mr.
Westervelt’s migraines, so that section remains unchanged. 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.
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I. MIGRAINES
Mr. Westervelt served from 2000 to 2004. During service, he was knocked off a vehicle
and lost consciousness. He developed migraine headaches afterwards and filed a claim for
disability compensation. He was granted service connection and assigned an initial 0% rating. In
2015, he requested an increased 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 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 unt il
the migraine subsided. 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).
The Board assigned a 10% rating, finding “evidence of characteristic prostrating attacks of
migraine pain.” R. at 9. It 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
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the evidence demonstrated that the veteran’s migraines only occurred once every two months. The
parties agree that this statement is contrary to both 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, 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), who
by regulation possesses the authority to conduct a de novo review of the regional office’s 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 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, signaling the agency’s intention to
apply the same CUE standard to both veterans and the agency. Id.
CUE is a specific type of error that is obvious upon review and compels the conclusion that
the result would have been manifestly different but for the error. 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
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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 seeks to revise a prior final decision in a legacy appeal
to be less favorable than it originally was. 38 C.F.R. § 3.104(a) (“A binding agency decision is not
subject to revision except by the Board of Veterans’ Appeals, by Federal court order, or as provided
in §§ 3.105, 3.2500, and 3.2600.”); 38 C.F.R. § 3.2600(e) (explaining that a DRO may revise a
final and binding decision of the Agency on the basis of CUE). Grants of service connection and
the assignment of disability ratings 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, chronic sleep impairment, and disorientation as to time, place, person, or
situation) appears in DC 9411 for PTSD. Id.
The Board acts as an independent appellate body within VA and reviews DRO decisions
de novo. As an appellate body, the Board’s role is to independently review RO and DRO decisions
to ensure that these lower tribunals correctly apply applicable laws and regulations. And, while the
Board reviews the DRO without any deference, it is reviewing the DRO’s compliance with
applicable regulations rather than only reviewing the merits of the DRO’s decision. Here, the DRO
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revised a favorable finding which, under § 3.2600, would have required the DRO to have found
CUE in the original rating decision. Therefore, in order to affirm the DRO’s decision, the Board
was required to review the DRO’s finding of CUE, which it did not. The Board’s decision must be
remanded for it to 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 October 2021 motion for reconsideration is granted; the October 7, 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: February 2, 2022
Copies to:
Richard L. Frankel, Esq.
VA General Counsel (027)