Citation Nr: 1001265	
Decision Date: 01/08/10    Archive Date: 01/15/10

DOCKET NO.  08-04 783	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi



THE ISSUE

Whether there was clear and unmistakable error (CUE) in a 
December 1973 rating decision that denied service connection 
for paranoid schizophrenia.


REPRESENTATION

Appellant represented by:	Samuel M. Tumey, Attorney-at-
Law


ATTORNEY FOR THE BOARD

K. Fitch, Counsel





INTRODUCTION

The Veteran had active military service from August 1969 to 
September 1971.  He had been adjudicated as incompetent 
prior to September 2006, but in a rating decision dated in 
September 2006, the RO found that the Veteran was competent 
for VA purposes.  As such the Veteran is the appellant in 
this case.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a May 2007 rating decision of a 
Department of Veterans Affairs (VA) Regional Office (RO), 
that found no clear and unmistakable error in a December 
1973 rating decision that denied entitlement to service 
connection for paranoid schizophrenia.  The Veteran filed a 
notice of disagreement with respect to this decision in June 
2007, and the RO issued a statement of the case dated in 
December 2007.  The Veteran's substantive appeal was 
received by the RO in February 2008. 

In a June 1997 statement from the Veteran, he requested an 
earlier effective date for the grant of the 100 percent 
evaluation for his schizophrenia.  As this matter has not 
yet been adjudicated by the Board, it is referred to the RO 
for appropriate disposition. 


FINDINGS OF FACT

1.  Entitlement to service connection for paranoid 
schizophrenia was denied by the RO in a December 1973 rating 
decision.  The Veteran was notified of this decision and his 
appellate rights in a January 1974 RO letter, and he did not 
file a notice of disagreement.

2.  In a July 1981 rating decision, the RO denied the 
Veteran's application to reopen his claim of entitlement to 
service connection for schizophrenia; the Veteran appealed 
the RO's decision to the Board which, after further 
development, reopened the claim and granted entitlement to 
service connection for paranoia in a decision dated in 
August 1983.  

3.  The RO effectuated the August 1983 Board decision by way 
of a September 1983 rating decision, and service connection 
was established, effective April 1, 1981, the date of 
receipt of the application to reopen the service connection 
claim.

4.  The December 1973 rating decision was clearly and 
unmistakably erroneous in that it contained undebatable 
error, and as a result manifestly changed the outcome of the 
decision.


CONCLUSION OF LAW

The December 1973 rating decision which denied service 
connection for paranoid schizophrenia was clearly and 
unmistakably erroneous.  38 U.S.C.A. §§ 5110 (West 2002); 
38 C.F.R. § 3.105 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board finds that the Veterans 
Claims Assistance Act of 2000 (VCAA) is not applicable to 
this case as a matter of law.  The United States Court of 
Appeals for Veterans Claims (Court) has held that the VCAA 
does not apply to CUE actions.  See Livesay v. Principi, 15 
Vet. App. 165 (2001)(en banc) (holding VCAA does not apply 
to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 
(2001) (holding VCAA does not apply to RO CUE claims).  The 
general underpinning for the holding that the VCAA does not 
apply to CUE claims is that regulations and numerous legal 
precedents establish that a review for CUE is only upon the 
evidence of record at the time the decision was entered 
(with exceptions not applicable in this matter).  See Fugo 
v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 
F.3d 1348 (Fed. Cir. 2001) (affirming the Court's 
interpretation of 38 U.S.C. § 5109A that RO CUE must be 
based upon the evidence of record at the time of the 
decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 
(Fed. Cir. 2000) (upholding Board CUE regulations to this 
effect).

Criteria & Analysis

The Veteran in this case contends that the December 1973 
rating decision which initially denied service connection 
for paranoid schizophrenia contains CUE and, therefore, 
service connection should be awarded as of the date he filed 
his original claim. 

Following notification of an initial review and adverse 
determination by the Regional Office (RO), a notice of 
disagreement must be filed within one year from the date of 
notification thereof; otherwise, the determination becomes 
final.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.

Under the provisions of 38 C.F.R. § 3.105(a), previous 
determinations that are final and binding, including 
decisions of service connection, will be accepted as correct 
in the absence of clear and unmistakable error.  In order 
for a claim of CUE to be valid, there must have been an 
error in the prior adjudication of the claim; either the 
correct facts, as they were known at the time, were not 
before the adjudicator or the statutory or regulatory 
provisions extant at the time were incorrectly applied.  
Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. 
Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 
Vet. App. 310, 313-14 (1992) (en banc).  Further, 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 a determination that there was CUE 
must be based on the record and law that existed at the time 
of the prior adjudication in question.  Id.  Simply to claim 
CUE on the basis that the previous adjudication improperly 
weighed and evaluated the evidence can never rise to the 
stringent definition of CUE, nor can broad-brush allegations 
of "failure to follow the regulations" or "failure to 
give due process," or any other general, non-specific claim 
of "error" meet the restrictive definition of CUE.  Fugo 
v. Brown, 6 Vet. App. 40, 44 (1993).

Clear and unmistakable error is an administrative failure to 
apply the correct statutory and regulatory provisions to the 
correct and relevant facts.  It is not mere 
misinterpretation of facts.  Oppenheimer v. Derwinski, 1 
Vet. App. 370, 372 (1991).  It is a very specific and rare 
kind of error of fact or law that compels the conclusion, as 
to which reasonable minds could not differ, that the result 
would have been manifestly different but for the error.  
Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  

Where evidence establishes CUE, the prior decision will be 
reversed or amended.  For the purpose of authorizing 
benefits, the rating decision which constitutes a reversal 
of a prior decision on the grounds of CUE has the same 
effect as if the corrected decision had been made on the 
date of the reversed decision.  38 C.F.R. §§ 3.104(a), 
3.400(k).

The Court has propounded a three-pronged test to determine 
whether clear and unmistakable error is present in a prior 
determination.  First, 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.  
Second, 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."  Third, a 
determination that there was clear and unmistakable error 
must be based on the record and the law that existed at the 
time of the prior adjudication in question.  Damrel v. 
Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. 
Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

The relevant laws and regulations in effect in December 1973 
with respect to awards of service connection were 
essentially unchanged from those in effect at present; 
although the relevant code numbers have since been revised.  
Service connection will be granted if it is shown that the 
veteran suffers from disability resulting from an injury 
suffered or disease contracted in line of duty, or for 
aggravation of a preexisting injury suffered or disease 
contracted in line of duty, in the active military, naval, 
or air service.  38 U.S.C.A. §§  310, 331 (West 1970) (now 
codified as 1110, 1131 (West 2002)); 38 C.F.R. § 3.303 
(1973, 2009).  That an injury occurred in service alone is 
not enough; there must be chronic disability resulting from 
that injury.  If there is no showing of a resulting chronic 
condition during service, then a showing of continuity of 
symptomatology after service is required to support a 
finding of chronicity.  38 C.F.R. § 3.303(b).  Additionally, 
for veterans who have served 90 days or more of active 
service during a war period or after December 31, 1946, 
certain chronic disabilities, such as psychoses, are 
presumed to have been incurred in service if manifested to a 
compensable degree within one year of discharge from 
service.  38 U.S.C.A. §§ 312, 333 (1970) (now codified as 
1112, 1133 (West 2002)); 38 C.F.R. §§ 3.307, 3.309.  Service 
connection may also be granted for any disease diagnosed 
after discharge, when all the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).  

On September 24, 1973, the Veteran filed a claim of service 
connection for paranoid schizophrenia.  The evidence on file 
at that time consisted of service treatment records and VA 
medical records.  

The Veteran's service treatment records indicate that in 
June 1971 the Veteran was hospitalized for heroin addiction.  
He was noted to be taking part in an amnesty program for his 
addiction, but went AWOL.  The Veteran was also diagnosed 
with paranoid schizophrenia.  A Clinical Record Cover Sheet 
dated in June 1971 reflects that paranoid schizophrenia was 
incurred in the line of duty, and heroin addiction was not 
incurred in the line of duty and was due to the Veteran's 
own misconduct.  A July 1971 Clinical Record Cover Sheet 
reflects a diagnosis of drug addiction, heroin, manifested 
by withdrawal symptoms; treated and cured.  He was also 
noted to have predisposition of history of mental illness in 
his father and other family members, and minimal impairment 
for further military duty.  It was noted that the drug 
addiction was not incurred in the line of duty, and was due 
to his own misconduct.  The Veteran was recommended to be 
returned to duty for an "Early out - ETS" discharge.  The 
Veteran's separation examination indicated that the Veteran 
was normal in all respects.

VA treatment records on file reflect that the Veteran was 
hospitalized in September 1973, with a diagnosis of 
schizophrenia, paranoid type.  The physician indicated that 
personality disorder should be ruled out and that further 
treatment and testing were in order.  A November 1973 
treatment record reflects that the Veteran reported being 
treated and hospitalized at Searcy Hospital in Mobile, 
Alabama, for one and a half months but was vague about when.  

Based on the foregoing, the RO, in December 1973, denied 
service connection for paranoid schizophrenia.  The RO 
reasoned that the Veteran had paranoid schizophrenia as a 
result of his heroin addiction, but that this diagnosis was 
dropped at the time of the Veteran's discharge from the 
hospital.  The RO also noted that the Veteran's separation 
examination made no reference to treatment for a nervous 
condition or for the heroin addiction.  The RO noted that 
the Veteran was presently hospitalized with a diagnosis of 
schizophrenia, paranoid type, but with personality disorder 
to be ruled out.  The RO concluded that the schizophrenia 
diagnosed in service was drug induced and of an acute nature 
without permanent residuals or continuity thereof, and 
determined that the presently diagnosed schizophrenia was 
not related thereto.  The Veteran did not file a notice of 
disagreement, thus the rating determination is final.  
38 U.S.C.A. § 7105.

After the December 1973 RO decision became final, the 
Veteran submitted an application to reopen his claim of 
entitlement to service connection for schizophrenia on two 
additional occasions.  In October 1975 and September 1979, 
the RO denied reopening the Veteran's claim on the basis 
that new and material evidence had not been received.  The 
Veteran was advised of the decisions in October 1975 and 
September 1979, respectively, and his appellate rights.  The 
Veteran did not file a notice of disagreement with regard to 
either rating decision, thus such rating determinations are 
final.  38 U.S.C.A. § 7105.

In April 1981, the RO received an additional application to 
reopen his claim of entitlement to service connection for 
schizophrenia.  In a July 1981 rating decision, the RO 
denied the Veteran's application to reopen his claim of 
entitlement to service connection for schizophrenia.  The 
Veteran filed a timely appeal of this decision to the Board 
which, after further development, reopened the claim and 
granted entitlement to service connection for paranoia in a 
decision dated in August 1983.  Such decision was based on 
receipt of two medical opinions, one from a VA physician, 
and another from an independent medical expert.  The VA 
physician opined that the Veteran's paranoid schizophrenia 
was present during the Veteran's service, and the 
independent medical expert opined that the Veteran's 
paranoid schizophrenia manifested during the one-year period 
for presumptive service connection for a psychosis.  On such 
basis, the Board concluded that at the very least, the 
Veteran's acquired psychiatric disability manifested during 
the presumptive period, and service connection was 
warranted.

In this case, the Veteran, through his representative, 
contends that the December 1973 RO decision contains clear 
and unmistakable error in that schizophrenia was 
presumptively service-connected as a chronic disability 
under 38 C.F.R. § 3.303(b) in effect at the time of the 
December 1973 decision.  He also contends that the RO should 
have requested the records of the Veteran's treatment at the 
Searcy County Hospital in Mobile, Alabama from 1973.  These 
records, he contends, would have demonstrated that the 
Veteran's condition was entitled to presumptive service 
connection as having been manifest to an extent of 10 
percent or more within one year of his discharge from the 
service.   

Initially, the Board notes that while the failure of the RO 
in 1973 to obtain the requested medical records may have 
affected the RO's decision in December 1973, a breach of the 
duty to assist creates only an incomplete rather than an 
incorrect record.  See Cook v. Principi, 318 F.3d 1334, 
1344-47 (Fed. Cir. 2002) (en banc); Elkins v. Brown, 8 Vet. 
App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 
383-84 (1994).  VA's breach of its duty to assist cannot 
form a basis for a claim of CUE.  See Tetro v. Gober, 14 
Vet. App. 100, 109 (2000).

The Board, however, does note that upon review of the 
evidence of record on file, there was incontrovertible 
medical evidence that the Veteran's schizophrenia was 
incurred in service.  

As detailed hereinabove, paranoid schizophrenia was 
diagnosed in June 1971, and a determination was made that 
such mental disability was incurred in the line of duty.  It 
is clear that in rendering an adjudication in December 1973, 
the RO did not consider the fact that trained military 
medical personnel were of the opinion that his psychiatric 
disability was incurred in the line of duty.  The RO 
concluded in December 1973 that the Veteran's schizophrenia 
was drug induced and of an acute nature without permanent 
residuals or continuity therof.  Such conclusion though is 
in complete contradiction with the findings of trained 
military medical personnel in June 1971 that while his 
heroin addiction was not incurred in the line of duty and 
was due to his misconduct, his paranoid schizophrenia was 
incurred in the line of duty.  The service treatment records 
are devoid of a finding that such paranoid schizophrenia was 
drug induced or an acute condition.  It is clear that if the 
RO had duly considered the fact that trained military 
medical personnel had concluded based on observation, 
evaluation, and treatment of the Veteran that his 
schizophrenia was incurred in service, that such 
consideration would have manifestly changed the outcome of 
the decision.  Moreover, per a recent decision of the U.S. 
Court of Appeals for the Federal Circuit (Federal Circuit), 
when a chronic disease is shown in service, subsequent 
manifestations of the same chronic disease at any later 
date, however remote, are service connected.  38 C.F.R. 
§ 3.303(b), see Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 
2008) (holding that when a chronic disease is identified in 
service and at any time after service, service connection 
will be granted without the need for nexus evidence).  In 
this case, service treatment records reflect a diagnosis of 
paranoid schizophrenia in June 1971, and the evidence of 
record on file at the time of the December 1973 decision 
reflects that he was hospitalized in September 1973 (two 
years after separation from service) due to paranoid 
schizophrenia.  Thus, a chronic disease was shown in 
service, and subsequent manifestations of the same chronic 
disease was shown within two years of separation from 
service.

Thus, based on the following, the evidence supports a 
finding that the December 1973 rating decision contained CUE 
in denying the claim of service connection for paranoid 
schizophrenia.









ORDER

The December 1973 rating decision which denied service 
connection for paranoid schizophrenia contained clear and 
unmistakable error.  The appeal is granted.



____________________________________________
M.W. KREINDLER
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs