Citation Nr: 0505032 Decision Date: 02/23/05 Archive Date: 03/04/05 DOCKET NO. 03-32 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether clear and unmistakable error was committed in the March 25, 1955 rating decision assigning a 10 percent disability evaluation for an anxiety reaction. 2. Whether clear and unmistakable error was committed in the March 25, 1955 rating decision by not granting entitlement to service connection for the residuals of damage to cranial nerve VII. 3. Whether clear and unmistakable error was committed in the March 25, 1955 rating decision by not granting entitlement to service connection for the loss of teeth. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant-veteran ATTORNEY FOR THE BOARD Kristi Barlow, Counsel INTRODUCTION The veteran served on active duty from June 1951 to November 1953, including combat service during the Korean conflict. The veteran was a prisoner of war for approximately thirteen months. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which declined to find that clear and unmistakable error had been committed by the RO in a March 25, 1955 rating decision with respect to the issues set out above. FINDINGS OF FACT 1. The correct facts, as they were known at the time of the March 1955 rating decision, were before the adjudicator at the time of the rating decision and the statutory and regulatory provisions extant at the time of that rating decision were correctly applied in assigning a 10 percent disability evaluation for an anxiety reaction. 2. The March 1955 rating decision assigning a 10 percent disability evaluation for an anxiety reaction did not contain factual or legal errors of such magnitude, individually or cumulatively, that a different outcome would have to have been reached in their absence. 3. The correct facts, as they were known at the time of the March 1955 rating decision, were before the adjudicator at the time of the rating decision, but the statutory and regulatory provisions extant at the time of that rating decision were not correctly applied by failing to adjudicate the claim of entitlement to service connection for the residuals of damage to cranial nerve VII. 4. The March 1955 rating decision failing to adjudicate the claim of entitlement to service connection for the residuals of nerve damage to cranial nerve VII contains errors of such magnitude that a different outcome would have to have been reached in their absence. 5. The correct facts, as they were known at the time of the March 1955 rating decision, were before the adjudicator at the time of the rating decision, but the statutory and regulatory provisions extant at the time of that rating decision were not correctly applied by failing to adjudicate the claim of entitlement to service connection for loss of tooth number 20. 6. The March 1955 rating decision failing to adjudicate the claim of entitlement to service connection for the loss of teeth contained errors of such magnitude that a different outcome would have to have been reached in their absence. CONCLUSIONS OF LAW 1. Clear and unmistakable error is not shown in the March 25, 1955 rating decision assigning a 10 percent disability evaluation for an anxiety reaction. 38 C.F.R. § 3.105 (2004). 2. Clear and unmistakable error is shown in the March 25, 1955 rating decision failing to adjudicate the claim of entitlement to service connection for the residuals of damage to cranial nerve VII. 38 C.F.R. § 3.105 (2004). 3. Clear and unmistakable error is shown in the March 25, 1955 rating decision failing to adjudicate the claim of entitlement to service connection for the loss of tooth number 20. 38 C.F.R. § 3.105 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of VA as to conclusions based on the evidence on file at the time VA issues written notification. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authority or except as provided in 38 C.F.R. Sections 3.105 and 3.2600. See 38 C.F.R. § 3.104(a). 38 C.F.R. Section 3.105(a) states that previous determinations that are final and binding, including decisions of service connection and degree of disability, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. The United States Court of Appeals for Veterans Claims (Court) propounded a three-pronged test for determining when there has been clear and unmistakable error committed in a prior decision. This test is as follows: (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 the 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court refined and elaborated on the test set forth in Russell. In Fugo, the Court stated: ...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. . . . If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. at 43-44 (emphases in original). Thus, as a threshold matter, a claimant must plead clear and unmistakable error with sufficient particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995). The Court also held in Fugo that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. Fugo v. Brown, 6 Vet. App. at 44. Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of error cannot constitute a valid claim of clear and unmistakable error. Id. Additionally, the Court held that VA's breach of its duty to assist cannot form a basis for a claim of clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Anxiety Reaction The veteran asserts that the March 1955 rating decision assigning a 10 percent rating for his anxiety reaction was clearly erroneous because his disability was described in the medical evidence as moderately severe. He also contends that because his condition has not really worsened over the years and is now evaluated as 30 percent disabling, it must have been erroneous for a 10 percent initial rating to have been assigned. The veteran credibly testified before the Board that he was anxious following his period of imprisonment and upon his discharge from service with severe facial deformity. At the time of the March 1955 rating decision, anxiety reactions were evaluated under Diagnostic Code 9104 of the VA Schedule of Ratings. This diagnostic code, however, directed that the rating criteria of Diagnostic Code 9103 be used, substituting psychological reactions of fear, anxiety, etc., for phobias, obsessions and compulsions. Thus, the following is the rating criteria used in 1955 to evaluate the veteran's diagnosed anxiety reaction: Pronounced; with irresolution amounting to aboulia, or severe anxiety reaction associated with almost all daily activities; consistent deterioration of the general health, persistent and continuous; in symptom combinations that are persistent, continuous, and productive of nearly complete social and industrial inadaptability..............................................................80 Severe; with characteristic indecision and severe phobias, obsessions, compulsions or anxiety reaction associated with several important or common situations; productive or severe social and industrial inadaptability..................................................50 Moderately severe; with persistent phobias, obsessions or compulsions, fairly numerous and materially circumscribing activity, producing fairly constant moderate anxiety reaction or perhaps occasional severe situation anxiety episodes; productive of considerable social and industrial inadaptability.....................30 Moderate...................................................................10 Mild..........................................................................0 The evidence of record at the time of the March 1955 rating decision clearly shows that the veteran was treated for anxiety during his period of active service following his physical injuries and time spent as a prisoner of war. He had a severe reaction to medication on one occasions and was described as uncontrollable, but this type of episode was not repeated once the medication was stopped. Following a May 1953 examination after the veteran was repatriated the previous month, he was found to have moderately severe anxiety. The veteran's DD Form 214 includes a notation that he was discharged with an anxiety reaction causing marked impairment. Post-service hospital records dated in September 1954 include the medical opinion that the veteran's anxiety reaction caused marked impairment; hospital records dated from September 1954 to November 1954 include the opinion that the veteran had a moderately severe anxiety reaction; and, a November 1954 clinical evaluation note includes the opinion that the veteran's anxiety reaction caused moderate to severe impairment. The November 1954 hospitalization records reflect that the veteran was insecure with very strong feelings of inferiority and inadequacy as well as marked emotional constriction, with no evidence of psychosis or organic brain damage. Based on the evidence as outlined, the RO determined in March 1955 that the veteran's psychiatric condition began during service and was moderate in severity. Thus, a 10 percent evaluation was assigned using the criteria set out above. Although there were medical opinions of record that the veteran's anxiety reaction caused moderately severe and marked impairment, the determination made by the RO that the veteran had moderate impairment under the VA Schedule of Ratings is not deemed to be clearly and unmistakably erroneous. Specifically, VA is not bound in its rating procedures by any specific use of wording by a medical professional as it is unclear whether the medical personnel examining the veteran based their opinions on interference with social and industrial activities as VA is required to do. Even though the Board certainly appreciates the veteran's argument that a person could interpret the medical record to show that he had a moderately severe psychiatric condition so as to warrant the assignment of a 30 percent rating in 1955, allegations that previous adjudicators improperly weighed and evaluated evidence can never rise to the stringent definition of clear and unmistakable error. See Fugo v. Brown, 6 Vet. App. at 44. Consequently, the Board finds that the March 1955 rating decision does not contain clear and unmistakable error with respect to the assignment of a 10 percent rating for an anxiety reaction because the correct facts, as they were known at the time of the March 1955 rating decision, were before the adjudicator at the time of that decision and the statutory and regulatory provisions extant at that time were correctly applied. Additionally, the March 1955 rating decision does not contain factual or legal errors of such magnitude, individually or cumulatively, that a different outcome would have to have been reached in their absence. The veteran's testimony in 2004 with respect to his belief that his psychiatric disability has not increased in severity since 1955 cannot be considered when determining whether clear and unmistakable error has been committed because the Board may only look to the evidence that was before the RO at the time of the rating in question. Therefore, the veteran's claim that clear and unmistakable error was committed by the RO in its March 1955 assignment of a 10 percent rating for an anxiety reaction is denied. Nerve Damage and Loss of Teeth The veteran asserts that the RO clearly erred in March 1955 by not granting entitlement to service connection for residuals of damaged cranial nerve VII and the loss of teeth. He contends that all disabilities stem from his in-service combat wounds and the imperfect care he received while a prisoner of war. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. If there is no evidence of a chronic condition during service, or an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). The evidence clearly shows that the veteran was severely injured by a shrapnel wound to the face just prior to becoming a prisoner of war. Upon his repatriation in 1953, he underwent a physical examination and was determined to be missing one tooth (number 20) on the left lower side of his jaw that was present when he was examined upon entry into service; all other missing teeth were also noted as missing in November 1951. Service treatment records also include the finding of damage to the facial nerve and the trigeminal nerve. The majority of the treatment records include reference to either the trigeminal nerve or cranial nerve number V, which is the trigeminal nerve, but several records mention facial nerve damage without specifying what cranial nerve was being discussed. The facial nerve is known as cranial nerve number VII. Based on the evidence outlined, the RO granted entitlement to service connection for various residuals of the shrapnel wound to the face, but failed to address the damage to cranial nerve number VII and the loss of teeth as neither disability was mentioned in its March 1955 rating decision. The Board finds, however, that the March 1955 rating decision with respect to these two issues contains clear and unmistakable error because the correct facts, as they were known at the time of the March 1955 rating decision, were before the adjudicator at the time of the decision but the statutory and regulatory provisions extant at that time were not correctly applied. Specifically, giving deference to the veteran as a prisoner or war, the RO should have granted service connection for all disabilities shown to be a result of the in-service injury and/or his period of imprisonment. Because the record evidence before the RO in March 1955 included findings of damage to the facial nerve and of one more missing tooth than prior to the injury, evidence of the existence of disabilities which obviously stem from either the in-service severe facial injury and/or the lack of proper treatment during approximately thirteen months of imprisonment, the RO committed clear and unmistakable error by not specifically addressing and granting the benefits sought. Consequently, the Board finds that entitlement to service connection should have been granted for residuals of damage to cranial nerve number VII and for missing tooth number 20 in the March 25, 1955, rating decision. Veterans Claims Assistance Act of 2000 The Board finds that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West 2002)) are not applicable to claims of clear and unmistakable error (CUE) in an RO determination. See Parker v. Principi, 15 Vet. App. 407, 412 (2002). CUE claims are not conventional appeals, but requests for revisions of previous decisions. See Disabled American Veterans v. Gober, 234 F.3d 682, 694 (Fed. Cir. 2000) citing Haines v. West, 154 F.3d 1298, 1300 (Fed. Cir. 1998). Thus, the moving party bears the burden of presenting allegations of error which existed at the time of the decision alleged to be the product of CUE. See Livesay v. Principi, 15 Vet. App. 165, 178-179 (2001). As a consequence, notifying an appellant of evidence necessary to substantiate a claim and assisting him in obtaining such evidence are obviously not requirements for CUE claims. ORDER Clear and unmistakable error having not been committed in the March 25, 1955 rating decision assigning a 10 percent disability evaluation for an anxiety disorder, the veteran's appeal is denied. Clear and unmistakable error having been committed in the March 25, 1955 rating decision in failing to adjudicate the claim of entitlement to service connection for residuals of damage to cranial nerve VII, the veteran's appeal is granted with respect to cranial nerve VII, subject to the laws and regulations governing the award of monetary benefits. Clear and unmistakable error having been committed in the March 25, 1955 rating decision in failing to adjudicate the claim of entitlement to service connection for loss of teeth, the veteran's appeal is granted with respect to tooth number 20, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ CONSTANCE B. TOBIAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs