Richard M. Simon v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 17-1361

RICHARD M. SIMON, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued October 30, 20181 Decided December 20, 2018)

Christian A. McTarnaghan with whom Amy F. Odom, both of Providence, Rhode Island,

was on the brief for the appellant.

Michael G. Imber, with whom Meghan Flanz, Interim General Counsel; Mary Ann Flynn,

Chief Counsel; and Edward V. Cassidy, Jr., Deputy Chief Counsel, all of Washington, D.C., were

on the brief for the appellee.

Before DAVIS, Chief Judge, and ALLEN and FALVEY, Judges.

ALLEN, Judge: e appellant Richard M. Simon served the Nation honorably in the

United States Marine Corps. In this appeal, which is timely and over which the Court has

jurisdiction,2 he challenges a May 1, 2017, Board of Veterans' Appeals (Board) decision that found

no clear and unmistakable error (CUE) in a September 3, 1974, regional office (RO) rating decision

that reduced his disability rating for PTSD from 30% to 10% based on a single examination

suggesting that his condition had improved. 3 He now attacks the 1974 decision on a collateral

basis, arguing that VA committed CUE because it applied the law concerning rating reductions

incorrectly.

1

e Court held oral argument in this matter at the Tampa Law Center of Stetson University College of Law

in Tampa, Florida. We thank both Stetson and Florida's Second District Court of Appeal, whose courtroom we used,

for their hospitality.

2

See 38 U.S.C. §§ 7252(a), 7266(a).

3

See Record (R.) at 2–36 (VA rated the appellant's disability as "anxiety reaction" in the rating decision that

is now under collateral attack. VA later characterized his condition as "posttraumatic stress disorder." Because both

ratings refer to the same disability, and for the sake of clarity, the Court will refer to the appellant's disability only as

"PTSD.")

To decide this appeal, the Court must consider the meaning of 38 C.F.R § 3.344 (1974), a

regulation providing that when an examination shows improvement in a claimant's disability, VA

must "handle [the] case[] . . . so as to produce the greatest degree of stability of disability

evaluations."4 is regulation provides additional procedures that VA must follow before reducing

a veteran's disability rating. When this heightened burden applies, the rating is subject to reduction

becomes entitled to a form of "heightened procedural protections." But the regulation, and

consequently these protections, only apply "to ratings which have continued for long periods at

the same level (5 years or more)."5 e principal question before the Court is the scope of this

provision's application. e matter was referred to a panel of the Court, with oral argument, to

decide whether the Board properly applied 38 C.F.R. § 3.344 when it found no CUE in the 1974

decision. As we explain, the Board was correct that § 3.344's rating reduction protections did not

apply to the appellant in 1974. erefore, we will affirm the Board decision on appeal.

I. OPERATIVE FACTS AND PROCEDURAL HISTORY

e appellant served in the United States Marine Corps from January 16, 1967, to February

29, 1968. He was stationed in the Vietnam demilitarized zone and engaged in fierce combat with

the enemy. e appellant reports that he endured frequent mortar bombardment, witnessed the

death of several close friends, and killed an enemy soldier by stabbing him to death.6 Because of

these experiences, the appellant was hospitalized for the latter part of his service. In January 1968,

a Physical Evaluation Board determined that appellant was unable to perform his duties because

of his condition and recommended separation from the U.S. Marine Corps.

In a March 1968 RO rating decision, VA granted the appellant service connection for

PTSD, effective March 1, 1968, the date of the appellant's discharge, with an initial rating of 50%.7

A few months later, in June 1968, VA attempted to schedule the appellant for an initial postservice

4

38 C.F.R. § 3.344(a) (1974).

5

38 C.F.R. § 3.344(c).

6

R. at 2026.

7

R. at 465.

2

PTSD evaluation. However, he informed VA that he was living and working out of the area and

could not undergo an examination. VA granted him an extension.8

In July 1969, more than a year after his separation, the appellant underwent his initial PTSD

examination.9 e examiner noted that the appellant was "moderate in the neurotic sphere," but

that his "stresses [were severe] in the past." 10 e appellant told the examiner that he was

"functioning satisfactorily at his job" and that, since experiencing his stressors, he had "gradually

began to feel somewhat better."11 Accordingly, in an October 1969 rating decision, VA reduced the

appellant's PTSD rating from 50% to 30%, stating that the appellant's disability appears to be

improving.12 e appellant did not appeal this determination and it became final.

Less than 5 years later, in August 1974, the appellant underwent another VA PTSD

examination, during which the examiner remarked that the appellant "is functioning rather

adequately."13 e examiner noted that the appellant was not satisfied with his job because it was

not challenging enough given the marketing degree he earned after his separation.14 Based on this

new evidence, the RO decided that "the current examination shows a good industrial and social

adjustment" and reduced the appellant's PTSD rating from 30% to 10%, effective December 1,

1974.15 e appellant did not appeal this decision either and it too became final.

In August 2014, more than 40 years after the RO reduced the appellant's rating, he asked

VA to revise the 1974 decision on the basis of CUE.16 He argued that because he had a PTSD rating

of 50% from 1968 to 1970 and a rating of 30% from 1970 to 1974, he had maintained a rating of

at least 30% for longer than the 5-year period outlined in the regulation. He claimed that when VA

8

R. at 2036–37, 2046.

9

R. at 2022–31.

10

R. at 2028–30.

11

R. at 2028.

12

R. at 2016–17.

13

R. at 1938.

14

Id.

15

R. at 1934.

16

R. at 831.

3

reduced his rating below 30% in the 1974 decision, it committed CUE by not affording him the

procedural protections provided in § 3.344.17

In response, the RO issued an April 2015 decision in which it concluded that no revision

was warranted.18 e appellant filed a May 2015 Notice of Disagreement (NOD), continuing to

argue that VA did not employ the heightened rating-reduction procedures to which he was entitled

under § 3.344.19 After VA issued a Statement of the Case (SOC) continuing the denial, the appellant

perfected his appeal to the Board. en, on May 1, 2017, the Board issued a decision finding no

CUE in the 1974 rating decision. In reaching its conclusion, the Board determined that 38 C.F.R.

§ 3.344 did not apply to the appellant's PTSD rating in 1974 because that rating "did not continue

at the same level for five years" and, therefore, "had not become stabilized." 20 is appeal

followed.

II. ANALYSIS

e appellant did not challenge the 1974 RO rating decision reducing his PTSD rating from

30% to 10% within the time permitted to file a direct appeal. As a general matter, when VA renders

a decision that is not appealed within the statutory period, that decision becomes final.21 ere are

limited avenues by which a claimant may revisit a final decision. For example, he or she may

reopen such a claim by submitting new and material evidence.22 And, as appellant has done here,

a claimant may move to revise such a final decision on the basis that it contains CUE.23 To address

the appellant's appeal, we first describe the legal landscape concerning CUE. en we turn to how

these principles apply in this appeal.

17

Id.

18

R. at 587.

19

R. at 489.

20

R. at 33.

21

See 38 U.S.C. §§ 7252, 7266(a)(1).

22

38 C.F.R. § 3.156(a) (2018).

23

38 U.S.C. §§ 5109A(a), 7111(a); see DiCarlo v. Nicholson, 20 Vet.App. 52, 56 (2006); 38 C.F.R.

§§ 3.105(a) (2018), 20.1400–1411 (2018).

4

A. e CUE Analysis Framework

When a final decision contains CUE, that decision may be reversed or revised, resulting in

correction of the error effective the date of its commission.24 CUE is established when (1) either

the correct facts as they were known at the time were not before the adjudicator, the adjudicator

made an erroneous factual finding, or the statutory or regulatory provisions extant at the time were

incorrectly applied; (2) the alleged error is "undebatable," rather than a mere "disagreement as to

how the facts were weighed or evaluated;" and (3) the error "manifestly changed the outcome" of

the decision.25

It is not easy to establish CUE in a final decision. We have held that an error is

"undebatable" when "reasonable minds could only conclude that the original decision was fatally

flawed at the time it was made."26 In other words, "CUE is a very specific and rare kind of 'error' .

. . of fact or law, that when called to the attention of later reviewers compels the conclusion, to

which reasonable minds could not differ, that the results would have been manifestly different but

for the error."27

When assessing the Board's CUE determination, the Court "cannot conduct a plenary

review of the merits of the original decision." 28 Rather, the Court's overall review of a Board

decision finding no CUE in a prior, final decision is limited to determining whether the Board's

finding was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law,"29 and whether it was supported by an adequate statement of reasons or bases on all material

issues of fact and law.30 But the components of a valid CUE finding are subject to review under

24

38 U.S.C. §§ 5109A, 7111; see DiCarlo, 20 Vet.App. at 54–58; 38 C.F.R. §§ 3.105 (2018), 20.1400–1411

(2018).

25

Russell v. Principi, 3 Vet.App. 310, 313–14, 319 (1992); see Simmons v. Wilkie, No. 16–3039, __ Vet.App.

__, __, 2018 U.S. App. Vet. Claims LEXIS 1265, at *8-*9 (Sept. 20, 2018); King v. Shinseki, 26 Vet.App. 433, 439

(2014); Bouton v. Peake, 23 Vet.App. 70, 71–72 (2008); Damrel v. Brown, 6 Vet.App. 242, 245 (1994); see also Bustos

v. West, 179 F.3d 1378, 1380–81 (Fed. Cir. 1999).

26

Andrews v. Principi, 18 Vet.App. 177, 181 (2004) aff'd sub nom Andrews v. Nicholson, 421 F.3d 1278 (Fed.

Cir. 2005) (quoting Russell, 3 Vet.App. at 313–14).

27

Fugo v. Brown, 6 Vet.App. 40, 43 (1993).

28

Andrews, 18 Vet.App. at 181; see Archer v. Principi, 3 Vet.App.4 33, 437 (1992).

29

38 U.S.C. § 7261(a)(3)(A).

30

38 U.S.C. § 7104(d)(1); see Cacciola v. Gibson, 27 Vet.App. 45, 59 (2014); King, 26 Vet.App. at 439.

5

the standards applicable to each.31 Of particular relevance here, whether an applicable regulation

was correctly applied or interpreted is a question of law, which the Court reviews de novo.32

e appellant argues that the Board misinterpreted 38 C.F.R. § 3.344 when it found the

regulation inapplicable to the reduction of his PTSD rating in 1974.33 e Board held that § 3.344

provides rating protection only when a veteran has the exact same disability rating for at least a 5-

year period.34 e appellant finds this reading too narrow. He suggests that the regulation protects

any baseline level of symptomatology that exists for at least 5 years. For example, under the

appellant's logic, if a veteran maintains a rating of at least 50% for 5 years, that 50% rating receives

heightened protections even if the actual rating percentage changed over that period. We turn now

to whether that assertion is a correct reading of § 3.344.

B. Rating Protection Under § 3.344

At its core, 38 C.F.R. § 3.344 reflects the common sense principle that the longer a veteran

has a given disability rating, the more likely it is both that such a rating has stabilized and,

therefore, that a veteran has come to rely on continuing to receive a corresponding amount of

monetary benefits. In recognition of this principle, VA imposed on itself through the regulation a

heightened duty to show that a rating reduction is proper once such a rating has existed at the same

level for a significant length of time. For example, when a new examination shows improvement,

VA must review the entire record of medical evidence "to ascertain whether the recent examination

is full and complete." 35 And if the recent examination showing improvement is "less full and

complete than those on which payments were authorized . . . it will not be used as a basis of

reduction."36 Furthermore, with regard to diseases subject to temporary and episodic improvement,

a veteran's rating will not be reduced on a single examination absent evidence that clearly shows

sustained improvement. Lastly, before VA can reduce a rating for any disability entitled to

31

Simmons, __ Vet.App. at __, 2018 U.S. App. Vet. Claims LEXIS 1265, at *9; Hopkins v. Nicholson, 19

Vet.App. 165, 167–68 (2005).

32

Simmons, __ Vet.App. at __, 2018 U.S. App. Vet. Claims LEXIS 1265 at *9–*10; Hopkins, 19 Vet.App. at

168; see also George v. Shulkin, 29 Vet.App. 199, 2016 (2018); Stallworth v. Nicholson, 20 Vet.App. 482, 487 (2006);

Joyce v. Nicholson, 19 Vet.App. 36, 43–44 (2005); Andrews, 18 Vet.App. at 182.

33

Appellant's Brief (Br.) at 5.

34

R. at 33.

35

38 C.F.R. § 3.344(a) (2018).

36

Id.

6

heightened procedural protections under § 3.344, it must first consider whether that improvement

is reasonably certain to remain under the ordinary conditions of life. 37 e point is that when a

rating qualifies for these heightened protections, it is more difficult for VA to implement a

reduction. Here, it is undisputed that VA, in 1974, did not afford, or even discuss, these procedural

protections when reducing the appellant's PTSD rating to 10%. e resolution of this appeal hinges

solely on whether the appellant's PTSD qualifies for such rating protections.

It is well established that "[r]egulatory interpretation begins with the language of the

regulation, the plain meaning of which is derived from its text and its structure."38 If the plain

meaning is clear, then that interpretation controls and that is the end of the matter.39 Finally, when

assessing the plain meaning, words are given "their ordinary, contemporary, common meaning"

absent some indication that they were meant to mean something else.40

Subesection (c) of § 3.344 establishes when the heightened protections of the regulation

apply. In 1974, as today, this provisions read as follows:

(c) Disabilities which are likely to improve. e [rating protection] provisions of

paragraphs (a) and (b) of this section apply to ratings which have continued for long

periods at the same level (5 years or more). ey do not apply to disabilities which

have not become stabilized and are likely to improve. Reexaminations disclosing

improvement, physical or mental, in these disabilities will warrant reduction in

rating.

e appellant concedes that his PTSD rating did not continue at a specific percentage for 5

years or more.41 Nevertheless, he argues that § 3.344 applies to the 1974 reduction of his PTSD

rating because the periods for which he was rated at 50% and 30% may be combined to reach the

5-year mark, and that the regulation protects the lowest rating awarded within those 5 years. e

Secretary argues that combining different rating periods is permissible under the regulation, but

asserts that the rating protection can be earned through such combination only when the disability

rating has increased within the 5-year period, i.e., when the condition is worsening. 42 Per the

37

See id.

38

Petitti v. McDonald, 27 Vet.App. 415, 422 (2015); see Good Samaritan Hosp. v. Shalala, 508 U.S. 402,

409 (1993).

39

Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006).

40

See Williams v. Taylor, 529 U.S. 420, 431 (2000); Prokarym v. McDonald, 27 Vet.App. 307, 310 (2015).

41

Appellant's Br. at 7.

42

Secretary's Br. at 18 (arguing that § 3.344 rating protection may apply to a rating that changed within the

5-year period if the condition is worsening, but not if it is improving).

7

Secretary's reading of § 3.344(c), the appellant's condition (1) never stabilized at either 50% or at

30%, and (2) was improving, not worsening. He argues that because the appellant's PTSD was

improving, the appellant can't combine the periods in which he held different ratings and, therefore,

in 1974 was not entitled to the rating protections of § 3.344.

As discussed in detail below, the Court rejects both parties' interpretations. e plain

language of the regulation makes clear that the 5-year requirement can't be met by combining 2

periods with different rating percentages no matter whether the ratings fluctuated upward or

downward. e Court holds that a rating becomes entitled to heightened procedural protections

under § 3.344(c) only when it has existed at the exact same percentage for at least 5 years.

e first two sentences of subsection (c) are the operative provisions. e opening sentence

affirmatively defines the ratings to which the enhanced protections of § 3.344 apply. e second

sentence has the same aim, but approaches the matter by providing examples of disabilities that

do not merit such protections. e regulation's use of rating in the first sentence of subsection (c),

and disabilities in the second sentence, highlights the subtle difference between "disability ratings"

and "disabilities" generally. e former describes the numerical value that VA assigns based on

what it perceives is the "average impairment in earning capacity resulting from [a disability]."43

e latter is a more holistic characterization that takes into account not only the assigned rating,

but also other descriptors, including explanations of the disability within medical records. 44

Contrary to the parties' contentions, the best reading of the second sentence of subsection (c) is to

prevent the protections from applying to disabilities where slight improvement is shown, or is

expected in the future, but when such improvement does not reach a level that warrants a lower

rating in terms of a percentage on the rating scale. We conclude that, taken together, these

regulatory provisions are clear that § 3.344's protections did not apply to the appellant in 1974.

We begin by emphasizing that the heightened duties outlined above apply only to "ratings

which have continued for long periods at the same level."45 e applicability of the regulation does

not hinge on whether a disability, in some larger, holistic sense, has remained at the same level.

43

38 C.F.R. § 4.1 (2018).

44

See un v. Peake, 22 Vet.App. 111, 115 (2008), aff'd sub nom. un v. Shinseki, 572 F.3d 1366 (Fed. Cir.

2009) (noting that extraschedular consideration is required when the assigned rating does not fully contemplate the

actual disability of a veteran.).

45

§ 3.344(c) (emphasis added).

8

Rather, based on the plain language and the surrounding provisions, the word ratings refers to

specific percentage grades for disabilities per VA's rating schedule. For starters, the dictionary

defines a "rating" as a "classification according to grade or rank."46 us, a plain reading associates

the word "rating" with the grade VA assigns to a disability. e appellant suggests that the word

"rating" refers to some baseline level of symptomatology or an overall disability picture. But that

contradicts the ordinary definition of the term.

e Court's understanding in this regard is harmonious with how Congress and VA use the

word "rating." For example, in 38 U.S.C. § 1155, the statutory provision granting VA authority to

create and modify the rating schedule, Congress states that "[VA] shall adopt and apply a schedule

of ratings . . . [that] provide[s] . . . grades of disability . . . upon which payments of compensation

shall be based." at section then continues by specifying that the schedule is to be constructed

with percentage grades in 10% increments. e tabular rating schedule VA created under this

authority confirms this reading of "rating." e schedule is comprised of two columns, with the

specific diagnosis or symptomatology on the left and the corresponding rating percentage on the

right.47 e "rating" column on the right contains only numbers relating to the symptoms found on

the left.48 So, when VA is adjudicating a disability claim, it matches the symptoms to a percentage.

Symptomatology may increase in severity without becoming so severe as to reach a higher rating

percentage. us, symptoms and ratings are entirely distinct concepts and one cannot be shorthand

for the other, as the appellant suggests. With the understanding that the applicability of § 3.344 is

premised on how long a rating has been in place, as opposed to how long some baseline

symptomatology has existed, we can analyze exactly how long a rating must exist before it

becomes entitled to heightened protections.

For now, let's stick with the first sentence. e phrase "continued . . . at the same level" is

clear and specific. e common meaning of this phrase is not in doubt. e dictionary defines the

word "same" as "identical with what is about to be or has just been mentioned." 49 Another

46

THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, 1602 (2d ed., unabridged) (hereinafter

RANDOM HOUSE).

47

See, e.g., 38 C.F.R. § 4.71a (Diagnostic Code 5276) (2018).

48

Id.

49

RANDOM HOUSE at 1696.

9

dictionary defines "same" as "not changing or showing change." 50 e word "level" means "a

degree of attainment" or "a relative position in respect to some norm in a scale of estimating."51

is language makes clear that § 3.344(a) applies when a rating exists for 5 years without changing

its degree or position on the rating schedule. In other words, if the appellant's initial rating was

50%, it cannot change and must be "identical" to 50% after 5 years. We conclude that the ordinary

or common meaning of "same level" does not contemplate combining periods of time when a

person has different ratings above a minimum threshold; rather, the person's rating must be exactly

the same for 5 years to qualify for the protections.

e second sentence of subsection (c), which describes the type of disabilities that do not

qualify for rating protection, reinforces our conclusion. It provides that rating protection does not

apply to disabilities that have not stabilized and are likely to improve.52 e word "stable" means

"likely to continue or last; firmly established; enduring or permanent."53 And to "stabilize" means

"to maintain at a given or unfluctuating level or quantity."54 ese definitions remove any doubt

(although we had none) that § 3.344 does not apply to disabilities for which the ratings have

changed or fluctuated.55 And lastly, turning to the final qualifying clause of subsection (c), it says

that rating protections do not apply to disabilities that are likely to improve. To "improve" means

to "make better in quality." 56 is language does not need very much unpacking. Simply put,

disabilities that got better, or are likely to, are not eligible for rating protections. Whether a

disability has "improved" is not wholly dependent on the assigned rating, but rather is determined

based on the full disability picture, which encompasses the type of disability involved, the ratings

previously and currently assigned, and the entire record of medical evidence.

50

THE NEW LEXICON WEBSTER'S ENCYCLOPEDIC DICTIONARY, 882 (1991 ed., unabridged) (hereinafter

WEBSTER'S).

51

Id. at 569.

52

See § 3.344(c).

53

RANDOM HOUSE at 1852.

54

Id.

55

Considering the inverse of this language, the dictionary defines "unstable" as "unsteadfast; inconsistent;

wavering." RANDOM HOUSE at 2087. is definition, too, fits the interpretation that the rating protections do not apply

to ratings that changed or fluctuated within a 5-year period.

56

WEBSTER'S at 487.

10

Because the plain meaning of the regulation is clear it is controlling, we need not go further

with the analysis. However, even if the appellant's proffered interpretation did not contradict the

plain language of the regulation, we would still reject it because it leads to absurd results and is

entirely inconsistent with how the words in the regulation are used in the "real world."

To illustrate the absurdity, consider a situation in which a veteran, "Vanessa," received an

initial disability rating of 100%. Under the appellant's reading of § 3.344, even if VA reduced

Vanessa's rating by 10% every year, leaving her with a 50% rating after 5 years, her rating would

still be entitled to protections if VA attempted to reduce her rating below 50%. Indeed, the appellant

argues that he "need only to have been rated at a level no lower than a particular disability level

for five years."57 Applied to Vanessa, she was rated at a level "no lower than" 50% for at least 5

years, even though her rating changed every year. e logical conclusion of this rationale is that,

once a veteran has been service connected for at least 5 years, he or she would automatically

qualify for rating protection at whatever his or her lowest rating was over those 5 years. is would

result in every service-connected disability becoming "stabilized" after 5 years. is interpretation

requires the Court to ignore the several qualifying phrases within subsection (c) that intentionally

limit protection to those ratings that have not changed in a long time and are unlikely to change in

the future. e appellant's proffered interpretation also asks us to ignore that the regulation includes

an explicit exception for disabilities that are improving.58 We shouldn't interpret the law to lead to

such an absurdity.59

In addition, the appellant's interpretation is fundamentally inconsistent with the common

way in which we use the words that are contained in the regulation. For example, assume you have

an office in a 50-story building. If your office was on the 30th floor for three years and on the 50th

floor for two years, you would never say that your office had been on the "same level"—the 30th

floor—for five years. But that is what the appellant's argument as to the meaning of "same level"

would dictate. And that is nonsensical. ere simply is no way to contort the English language to

read § 3.344(c) in a way that is consistent with the appellant's position.

57

Appellant's Br. at 8.

58

See § 3.344(c).

59

See Atencio v. O'Rourke, 30 Vet.App. 74, 83 (2018).

11

Before turning back to the Board's decision, we pause briefly to consider the Secretary's

position. Recall the Secretary's suggestion that § 3.344(c) provides rating protection when a

veteran's ratings have been increasing over time even though the ratings have not been the same.60

So, for example, if a veteran was rated at 50% for 3 years and then 70% for 2 years, the Secretary

would say that the veteran is entitled to the rating reduction protections of § 3.344 if his or her

rating was to go below 50%. Of course, the Secretary is generally free to provide greater procedural

protections to veterans than his own regulations provide, but his interpretation of the regulatory

language here is as inconsistent with § 3.344(c) as is that of the appellant.61 Just as the English

language does not support the appellant's position, it likewise does not support the Secretary's

views for the reasons we have explained.

C. e Board's Analysis of Section 3.344

We explained in the previous section that § 3.344 applies only to ratings that have remained

at precisely the same percentage for 5 years or more. Next we must consider, through the lens of

CUE, whether the Board applied the regulation properly in its decision now under collateral attack.

In the Board's May 2017 decision, it held that no error existed in the first prong of the CUE

analysis—whether the RO in 1974 applied the law correctly— and, thus, found "no need to proceed

to the second and third prongs of the CUE test."62 When analyzing § 3.344, the Board held that the

plain language explicitly "limits the provisions . . . to 'ratings which have continued for long

periods of time at the same level' and note[d] that this section does 'not apply to disabilities that

have not become stabilized."63 It then held:

[ e appellant's] rating did not continue at the same level for five years. Instead,

[he] was given three different ratings between his separation from service in 1968

and 1974, the latter two of which revised his rating down. is history is consistent

with a disability that had not become stabilized, and thus should not have been

afforded the protections of § 3.344(a).64

60

See, e.g., Secretary's Br. at 18.

61

As the appellant notes, the Secretary has taken this same position in another appeal before the Court. See

Simunovich v. Shulkin, No. 16-2604, 2018 U.S. App. Vet. Claims LEXIS 1379 (Oct. 17, 2018) (mem. dec.). e Court

in that case accepted the Secretary's concession of error based on his interpretation of the regulation. Id. at * 11-*13.

Of course, that memorandum decision is not binding here. See U.S. VET. APP. R. 30(a). is also answers the

appellant's citation of this decision in support of his argument. In any event, today we authoritatively have defined

what § 3.344(c) means and that interpretation is binding regardless of Simunovich.

62

R. at 33.

63

Id. (quoting 38 C.F.R. § 3.344).

64

R. at 33.

12

Essentially, the Board held that because the appellant's rating did not continue at a single

rating percentage for 5 years or more, his rating was not entitled to protection under § 3.344 in

1974. e Board highlighted that the appellant received three different ratings since separation,

none of which were in place for 5 years or more. Further, the Board noted that the medical evidence

suggests that the appellant's PTSD was improving. e Board correctly identified these facts as

disqualifying the appellant's rating from protection. is analysis is spot-on with the Court's

interpretation of § 3.344(c). In sum, the Board's decision is not arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law and it provided an adequate statement of

reasons and bases explaining how it reached its conclusion.

III. CONCLUSION

After consideration of the parties' briefs, oral arguments, the record on appeal, and the

governing law, the Court AFFIRMS the Board's May 1, 2017, decision.

13