Citation Nr: 0429423 Decision Date: 10/29/04 Archive Date: 11/08/04 DOCKET NO. 02-13 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether a September 1987 decision of the Board of Veterans' Appeals which denied a disability rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD) should be revised or reversed due to clear and unmistakable error (CUE). (The issues of entitlement to an effective date prior to May 3, 1989 for the assignment of a 70 percent disability evaluation for PTSD; entitlement to an effective date prior to July 3, 1990 for the assignment of a 100 percent disability evaluation for PTSD; and entitlement to an effective date prior to November 1, 1989 for the grant of service connection for a duodenal ulcer are the subjects of a separate decision under a different docket number.) REPRESENTATION Moving party represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The moving party, the veteran, had honorable active military service from May 1965 to May 1967 and from October 1967 to October 1970. He had additional military service from October 1970 to December 1977; he was discharged from that period of active duty under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) via communication dated in April 2002 from the moving party's attorney, which the Board has construed as including a motion for revision of a September 1987 Board decision on the basis of CUE. See 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400 (2003). The matter of the moving party's appeal as to the issues of entitlement to an effective date prior to May 3, 1989 for the assignment of a 70 percent disability evaluation for PTSD, entitlement to an effective date prior to July 3, 1990 for the assignment of a 100 percent disability evaluation for PTSD and entitlement to an effective date prior to November 1, 1989 for the grant of service connection for a duodenal ulcer will be addressed in a separate decision. Separate decisions are necessary because the motion concerning Board CUE is a matter within the Board's original jurisdiction and is not an appeal. See 38 U.S.C.A. § 7104, 7111 (West 2002). FINDINGS OF FACT 1. In September 1987, the Board denied the moving party's claim of entitlement to a rating in excess of 30 percent for PTSD. 2. The Board's decision of September 1987 was reasonably supported by the evidence then of record and was consistent with VA law and regulations then in effect. CONCLUSION OF LAW The Board's September 1987 decision does not contain CUE. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The moving party, through his attorney, contends that the September 1987 Board decision was clearly and unmistakably erroneous in determining that the moving party's PTSD did not warrant a rating in excess of 30 percent. In the interest of clarity, the Board will discuss law and VA regulations pertaining the motion under consideration and then will move on to an analysis of the motion. Relevant Law and Regulations The Veterans Claims Assistance Act In November 2000, the Veterans Claims Assistance Act of 2000 ("VCAA") was made law, and provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. The VCAA further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002); see 38 C.F.R. § 3.159 (2003). In Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (the Court) held in part that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions." It was observed that CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim of CUE is not by itself a claim for benefits. Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging such error is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Thus, a "claimant", as defined by 38 U.S.C.A. § 5100 (West 2002), cannot encompass a person seeking a revision of a final decision based upon CUE. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to CUE motions. Based on the precedential decision of the Court in Livesay, the Board concludes that the moving party's CUE claim is not subject to the provisions of the VCAA. The Board notes that the moving party has been accorded sufficient opportunity to present his contentions. There is no indication that the moving party has further argument to present. Board CUE A final decision by the Board is subject to revision on the grounds of clear and unmistakable error. If evidence establishes such error, the prior Board decision shall be reversed or revised. See 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1400 (2003). The motion to review a prior final Board decision on the basis of clear and unmistakable error must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non- specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to re- filing. See 38 C.F.R. § 20.1404(b) (2003); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). Clear and unmistakable error 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. See 38 C.F.R. § 20.1403(a) (2003); see also Damrel v. Brown, 6 Vet. App. 242 (1994), citing Russell v. Principi, 3 Vet. App. 310 (1992). The review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal that, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. See 38 C.F.R. § 20.1403(b) and (c) (2003); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Pertinent law and regulations in effect at the time of the September 1987 Board decision Only the law as it existed at the time of the Board's decision may be considered. See 38 C.F.R. § 20.1403(b). Following is a synopsis of the law and regulations pertaining to increased ratings as such existed in September 1987. (i) Increased disability ratings - in general Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 355; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. (ii) Specific schedular criteria for rating PTSD Under Diagnostic Code 9411, a 30 percent rating was assigned for definite impairment in the ability to establish or maintain effective and wholesome relationships with people and when psychoneurotic symptoms result in such reductions in initiative, flexibility, efficiency and reliability levels as to produce considerable industrial impairment. A 50 percent rating was assigned when the ability to establish or maintain effective or favorable relationships with people is substantially impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels to be were so reduced as to result in severe industrial impairment. A 70 percent rating was assigned when the ability to establish and maintain effective or favorable relationships with people was seriously impaired. The psychoneurotic symptoms were of such severity and persistence that there was pronounced impairment in the ability to obtain or retain employment. A 100 percent rating was assigned when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic symptoms that border on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as phantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1987). Factual background The evidence shows that a December 1983 rating decision granted service connection for PTSD and assigned a 30 percent rating. Of record at the time were VA medical records, including a report of hospitalization dated from August 5 to August 20, 1982; a mental hygiene clinic consultation report dated August 18, 1982; a psychiatric assessment dated August 27, 1982; a progress note dated October 27, 1982; and psychiatric evaluations dated December 30, 1982 and October 18, 1983. The moving party did not file a notice of disagreement as to the December 1983 decision. That decision is therefore final. 38 C.F.R. § 20.200 (1987). The moving party filed a claim for an increased disability rating for his service-connected PTSD, which was received on January 26, 1986. In an April 1986 rating decision, the RO confirmed and continued the prior 30 percent rating. The moving party perfected an appeal of that decision. Evidence before the Board at the time of its September 1987 decision, in addition to the evidence which was of record at the time of the initial RO rating decision in December 1983, consisted of private and VA medical records dated in 1985 and 1986. In the "Evidence" section of its decision, the Board referred to various outpatient psychiatric visits in 1985, 1986 and 1987, as well as the report of a VA special psychiatric examination in March 1986. In denying the veteran's claim, the Board noted that the veteran received treatment for his PTSD, "but not on an extensive basis, and his symptomatology has not been shown to be so incapacitating that he is precluded from functioning on a satisfactory basis, as evidenced by his recently having attained a degree in business management." [September 30, 1987 Board decision, page 4.] Analysis The moving party, through his attorney, contends that the September 1987 Board decision did not consider VA medical records dated from 1982 to 1984 which showed that the service-connected PTSD was active and severe and thus warranted a higher rating. In particular, the moving party argues that the September 1987 Board decision contained CUE because the Board only referred to records from 1985 onward and made no reference to the 1982 and 1983 VA progress notes and psychiatric reports. After a review of the record as it existed at the time of the September 1987 Board decision, as well as that decision itself, the Board concludes that the moving party's contention is not supported by the record. Upon review of the 1987 decision, the Board notes that although the decision did not specifically refer to the 1982-4 medical records in its discussion of the facts, there is no indication that this evidence was not considered by the Board in reaching its final determination. In the discussion and evaluation section of the 1987 decision, the Board noted the following: The Board has carefully reviewed the pertinent evidence of record and is mindful of the requirement that all reasonable doubt, if present, must be resolved in favor of the veteran. In evaluating the claim for an increased schedular evaluation for post traumatic stress disorder, we are guided by the criteria set forth above. In this regard, the recent medical evidence fails to establish the presence of psychiatric signs or manifestations indicative of a worsened disability picture required for assigning a higher schedular evaluation. The veteran receives treatment, but not on an extensive basis, and his symptomatology has not been shown to be so incapacitating that he is precluded from functioning on a satisfactory basis, as evidenced by his recently having attained a degree in business management. [emphasis added]. The above passage clearly indicates that the Board considered all pertinent evidence in reaching its decision, and that it chose to rely on recent medical evidence which suggested that the moving party's service-connected disability was no worse than 30 percent disabling. There is simply no indication that the Board failed to consider the 1982-4 medical evidence as the moving party alleges. The Board rejects the notion advanced by the moving party's attorney that failure to refer to earlier evidence meant that such evidence was not considered. The Board was not obligated to specifically refer to each item of evidence of record. In this case, the Board reasonably chose to highlight the recent medical evidence concerning the moving party's condition. The September 1987 Board decision, moreover, pre-dated the provisions of 38 U.S.C.A. § 7104(d)(1), enacted in February 1990, which now requires that Board decisions contain "Reasons and Bases" for Findings of Facts and Conclusions of Law. Although the September 1987 decision arguably would not pass muster today, today's standards cannot be applied to it. See 38 C.F.R. § 20.1403(b). The September 1987 Board was not required to discuss each and every piece of evidence it considered in the decision. In any event, the discussion section of the September 1987 decision indicates that the Board indeed considered the 1982- 4 medical evidence, but found the 1985-6 medical evidence more pertinent to determining whether the moving party's service-connected PTSD warranted a higher disability evaluation. Although the Court has recognized that a viable CUE claim may be premised on the theory that the VA adjudicator had failed to consider evidence of high probative value, the Court has made it clear that, for such a claim to succeed as to a decision issued prior to February 1990, the decision must have denied the very existence of the evidence. See Glynn v. Brown, 6 Vet. App. 523, 531 (1994) [CUE not found where prior decision "did not deny the existence of an in-service injury" but denied only that "any injury appellant may have sustained during service did not aggravate his preexisting condition"]; cf. Russell v. Principi, 3 Vet. App. 310, 319 [RO's denial of existence of evidence of record constitutes undebatable error]. In this case, the Board, in its 1987 decision, never denied the existence of the 1982-4 medical evidence, but instead reasonably determined that more recent medical evidence was the most significant in an increased rating claim. The moving party's principal contention is that the Board failed to consider medical evidence earlier than 1985 in arriving at its decision. This contention has been dealt with above. To the extent that the moving party is raising a related contention, that if considered the 1982-3 evidence outweighed the 1985-7 evidence regarding the matter of whether an increased rating was warranted, such a contention cannot constitute a valid claim of CUE. A disagreement with how the Board weighed or evaluated the facts in a particular case is not CUE. See Fugo, 6 Vet. App. at 44 ("to claim CUE on the basis that previous adjudicators had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE"); see also 38 C.F.R. § 20.1403(d). In summary, for the reasons and bases expressed above the Board finds that the September 1987 decision did not contain CUE. The motion is accordingly denied. ORDER The motion to revise the Board's September 1987 decision on the basis of clear and unmistakable error is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2