Citation Nr: 1214990 Decision Date: 04/25/12 Archive Date: 05/03/12 DOCKET NO. 09-43 758 ) DATE ) ) THE ISSUE Whether clear and unmistakable error was committed in a February 1985 Board of Veterans' Appeals decision, which denied service connection for a psychiatric disorder. REPRESENTATION Moving party represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to September 1973. The Veteran moves to reverse a February 1985 decision of the Board of Veterans' Appeals (Board), which denied service connection for a psychiatric disorder, on the basis that clear and unmistakable error (CUE) was committed in that decision. The Board has original jurisdiction over this matter. See 38 U.S.C.A. § 7111(e) (West 2002); 38 C.F.R. § 20.1402 (2011). The Board notes that the Veteran had also moved to revise a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa on the basis of CUE with regard to the effective date assigned the grant of service connection for bipolar disorder with psychotic features. In a January 2009 rating decision, the RO found that CUE was not committed in the September 2004 rating decision. While the Veteran submitted a timely notice of disagreement (NOD) in January 2009, he did not perfect his appeal by submitting a substantive appeal (i.e. VA Form 9) following issuance of an April 2010 statement of the case (SOC). See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2011). Accordingly, the Board declines to take jurisdiction over the Veteran's motion to revise the September 2004 rating decision on the basis of CUE. See id.; see also Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009). FINDING OF FACT In its February 1985 decision denying service connection for a psychiatric disorder, the Board applied the incorrect evidentiary standard in finding that the Veteran's pre-existing psychiatric disorder was not aggravated by active military service beyond its natural progression; application of the correct evidentiary standard to the evidence of record at the time compels the conclusion that service connection would have been granted in the February 1985 Board decision. CONCLUSION OF LAW Clear and unmistakable error was committed in the February 1985 Board decision denying service connection for a psychiatric disorder and reversal of that decision is warranted. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the motion. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). However, a motion to reverse or revise a final decision on the basis of CUE is not a claim for benefits, but is rather a collateral attack on that decision. While CUE, when demonstrated, may result in reversal or revision of a final decision on a claim for benefits, it is not by itself a claim for benefits under parts II or III of title 38, which govern the benefits available under the laws administered by VA. See Livesay v. Principi, 15 Vet. App. 165, 178-179 (2001). Whether there is CUE in a rating decision must be based on the record and law that existed at the time of the prior adjudication in question, and therefore the notice and duty to assist provisions under the VCAA are not applicable. Id.; see 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). In this regard, it is noted that "CUE claims are not conventional 'appeals,' but rather are requests for revisions of previous decision[s]." Disabled American Veterans (DAV) v. Gober, 234 F.3d 682, 694 (Fed.Cir.2000) (citing Haines v. West, 154 F.3d 1298, 1300 (Fed.Cir.1998)). Thus, the Board finds that the notice and assistance provisions of the VCAA are not applicable. In any event, because the motion has been granted, any error related to the VCAA is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Veteran moves to revise or reverse a February 1985 Board decision, which denied service connection for a psychiatric disorder, on the basis that CUE was committed in that decision. For the following reasons, the Board agrees that CUE was committed and that reversal of that decision is warranted. A final decision by the Board is subject to being revised or reversed on the grounds of CUE. See 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400 (2011). The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged 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. 38 C.F.R. § 20.1404(b) (2011). 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. Id. Motions that fail to comply with these requirements shall be dismissed without prejudice to re-filing. Id; see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). The Board notes that 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. 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) (2011); see also Damrel v. Brown, 6 Vet. App. 242 (1994), citing Russell v. Principi, 3 Vet. App. 310 (1992). The review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b). To warrant revision of a Board decision on the grounds of CUE, 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. 38 C.F.R. § 20.1403(c). If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. Id.; see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Examples of situations that are not CUE are: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the Veteran with the development of facts relevant to his or her claim; or (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). In the Veteran's January 2009 motion to reverse the Board's February 1985 decision, he argued that the Board committed CUE in that decision by applying the incorrect evidentiary standard in finding that the Veteran's pre-existing psychiatric disorder was not aggravated by active service and therefore that the presumption of soundness had been rebutted. See 38 U.S.C.A. § 1111 (West 2002). In this regard, under what was then 38 U.S.C.A. § 311, which was subsequently recodified as 38 U.S.C.A. § 1111, the Board found that although a psychiatric disorder was not noted on entry into service, clear and unmistakable evidence showed that it pre-existed active service. The Board further found that the Veteran's pre-existing psychiatric disorder was not aggravated by active service because the evidence showed that an onset of psychotic symptoms during service had resolved by or shortly after separation and did not recur again for another five years. The Veteran does not argue that the Board committed CUE in finding that his psychiatric disorder pre-existed service based on the evidence available at the time. Rather, the Veteran argues that the Board did not apply the clear-and-unmistakable-evidence standard in finding that his pre-existing psychiatric disorder was not aggravated by active service. Instead, the Board applied a less demanding evidentiary standard with regard to the issue of aggravation. The Veteran contends that if the Board had applied the clear-and-unmistakable-evidence standard with regard to the issue of aggravation, it would have granted the claim. The Board agrees and therefore finds that reversal of the Board's February 1985 decision is warranted. In order to establish service connection on a direct basis for a claimed disorder, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304(b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). In this regard, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden is on VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (2011); Wagner, 370 F.3d at 1096. If this burden is met, then the veteran is not entitled to service connection benefits. Wagner, 370 F.3d at 1096. The Board notes that at the time of the Board's February 1985 decision, it had not been established that the "clear and unmistakable" evidence standard applied to the issue of aggravation. It was only in the Wagner opinion, which was issued in 2004, that the Federal Circuit held that based on the express terms of section 1111 (which was codified as section 311 at the time of the February 1985 decision) the clear and unmistakable standard applied both to the issue of whether a disability pre-existed active service, and to the issue of whether it was aggravated by service. See id. As noted above, CUE cannot be found in a Board decision that correctly applies a statute or regulation when there has subsequently been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). However, the Federal Circuit has recently held that its interpretation of section 1111 in the Wagner opinion was retroactive in that the interpretation of a statute explains "what the statute has meant since the date of enactment." Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (quoting Patrick v. Nicholson, 242 Fed.Appx. 695, 698, 2007 WL 1725465 (Fed. Cir. 2007)). Thus, the Federal Circuit found that a 1986 Board decision which failed to apply the clear-and-unmistakable-evidence standard to the issue of aggravation was not in accordance with the law. See id. Therefore, the case was remanded so that the Board could determine whether the outcome of the 1986 decision would have been different had it applied the correct standard. See id. Accordingly, as this case presents the same factual scenario as addressed by the Federal Circuit in Patrick, the clear-and-unmistakable-evidence standard should have been applied to the issue of aggravation in the Board's February 1985 decision. At the time of the Board's February 1985 decision, the evidence of record showed that the Veteran had seen a clinical psychologist, Dr. A.D., on two occasions in June 1972 shortly before entering active service. The treating psychologist found that the Veteran was a "somewhat schizoid young man" with a long-standing history of anxiety and depression which had been present for a number of years. It was noted that as the date of his entrance into service approached, the Veteran became "more and more anxious and depressed." The psychologist further observed that the Veteran had unrealistic ideas about controlling things and responsibility for other people's feelings and behavior. It had been advised that the Veteran be under observation either at home or in the hospital, and that he not go into the service. The psychologist stated in this regard that the Veteran's behavior might be "sufficiently disturbed" at the time of entry that the Army would not accept him. The Veteran's December 1971 entrance examination reflects that the Veteran's psychiatric condition was found to be normal on clinical evaluation. However, in the accompanying report of medical history, the Veteran indicated having a history of trouble sleeping and depression or excessive worry. A June 30, 1972, notation on the entrance examination report reflects that the Veteran had no disqualifying defects or communicable diseases, and he was found fit for military service. The service treatment records reflect that nearly a year after the Veteran entered active service, in May 1973, he began exhibiting psychotic behavior and was hospitalized for the remainder of his service with a diagnosis of an acute schizophrenic episode. A May 1973 psychiatric examination performed on the day of his hospital admission reflects that he was "totally incoherent" and not reacting to any orders, direction, or guidance. A June 1973 Army Medical Report reflects a diagnosis of schizophrenic reaction, undifferentiated type, which was chronic and severe, and manifested by looseness of associations, hyperreligiostity, grandiosity, ideas of reference, and negativism. His degree of impairment for further military duty was considered "marked" and was only slightly improved with treatment. Although the Veteran had admitted to smoking marijuana or hashish, a June 1973 entry reflects that the treating provider "doubt[ed] that hashish had much of a role" in the Veteran's psychiatric symptoms. The service hospital records also reflect that the Veteran's brother, who was serving with the Veteran at the time, related that the Veteran had exhibited spells of withdrawal before and had been seen by a psychiatrist. The brother further reported that his mother had suspected that the Veteran was "insane or on drugs." However, a June 1973 entry reflects that the Veteran's parents felt that although he had exhibited psychological problems in the past, he was now "much worse." In a July 1973 Physical Evaluation Board report, the Medical Board found that the Veteran's chronic schizophrenic reaction existed prior to service (EPTS) to a degree of 10 percent but had been aggravated by 20 percent during service. The Medical Board also found that the aggravation of his psychiatric disorder was incurred in the line of duty. The Medical Board concluded that the Veteran was unfit for active service and recommended that he be separated from service with 20 percent severance pay due to the aggravation of his psychiatric disorder. The Veteran was transferred to a VA hospital in September 1973, from which he was discharged later that month. The discharge record reflects that the Veteran was exhibiting normal behavior as well as normal thought content and processes. He was diagnosed with an acute psychotic illness with no psychosis at discharge. Thereafter, the evidence of record at the time of the Board's February 1985 decision, including the Veteran's testimony at a November 1983 hearing, reflects that the Veteran's psychotic symptoms did not manifest for about five years after his discharge from service in September 1973, and that he was able to maintain employment during this time. However, in 1978, he began exhibiting psychotic and manic behavior again, and was repeatedly hospitalized in 1978, 1980, 1981, 1982, 1983, and 1984. He was diagnosed during this period with major affective disorder, bipolar, mixed, manic-depressive type, which is essentially the same as the Veteran's current diagnosis. In the Board's February 1985 decision, the Board found that the presumption of soundness attached as a psychiatric disorder was not noted in the Veteran's entrance examination. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b)(1). However, based on the June 1972 private treatment records showing psychiatric symptoms and treatment prior to service, as well as statements by the Veteran's brother in the service hospitalization records reflecting that the Veteran had exhibited psychiatric problems prior to entering service, the Board found that the clear and unmistakable evidence established a pre-existing psychiatric disorder. As noted above, the Veteran does not argue that there was CUE in this finding. Accordingly, whether this finding constituted CUE is not before the Board. See 38 C.F.R. § 20.1404(b). With regard to the issue of aggravation, the Board found in its February 1985 decision that the Veteran's "preexisting psychosis did not undergo any increase in severity during active duty." Rather, the Board found that it was "temporarily exacerbated by the stress of military life" and that the Veteran's "more overtly psychotic symptoms had subsided by the time of his separation from service and did not reappear until 1978, approximately five years after his separation from service." Thus, the Board concluded that the Veteran's pre-existing psychiatric disorder did not increase in severity during active service. The Board did not reference the clear and-unmistakable-evidence standard in finding that the Veteran's psychiatric disorder had not been aggravated by service. The Board finds that had the clear-and-unmistakable-evidence standard been applied to the evidence of record at the time of the February 1985 decision, it would necessarily have resulted in a grant of service connection. In this regard, although the Veteran had been seen for psychiatric symptoms and abnormal behavior prior to entering active service, such as disturbed thinking and mood, there is no evidence suggesting that he had ever exhibited psychotic symptoms of the magnitude with which they manifested during active service, which included "total incoherence" and very bizarre behavior requiring a long-term hospitalization of several months. Moreover, the July 1973 Physical Evaluation Board report reflects a formal finding that the Veteran's chronic schizophrenic reaction was aggravated during active service by a degree of 20 percent in the line of duty. As the Veteran's representative pointed out in the January 2009 motion, a service department finding that injury, disease or death occurred in line of duty is binding on VA unless it is patently inconsistent with the requirements of VA law. See 38 C.F.R. § 3.1(m) (2011). In this case, not only is a formal finding of aggravation not "patently inconsistent" with VA law, but in fact the Veteran's psychiatric disorder is presumed to have been aggravated by active service under VA law. See 38 U.S.C.A. § 1111; Wagner, 370 F.3d at 1096. The Board's main reason for finding that the Veteran's pre-existing psychiatric disorder was not aggravated by active service is that his symptoms had apparently subsided, more or less completely, for five years following separation before they manifested again. However, the Court has held that the "clear-and-unmistakable-evidence" standard is "onerous" and "very demanding." See Cotant v. Principi, 17 Vet. App. 116, 131 (2003). The fact that the Veteran's pre-existing psychiatric disorder manifested to a much more severe degree during active service, as shown by the evidence of record and as formally found by the Army Medical Board, as well as the fact that it was diagnosed as "chronic" in service, provides very probative evidence in support of aggravation. Indeed, as discussed in the preceding paragraph, VA was essentially bound by the service department's formal finding of aggravation under section 3.1(m). The burden was on VA to establish that the Veteran's psychiatric disorder was not aggravated by service. See 38 U.S.C.A. § 1111; Wagner, 370 F.3d at 1096. In light of the evidence of record and section 3.1(m), the fact that five years elapsed after service without a manifestation of the Veteran's psychiatric symptoms was certainly not enough to satisfy VA's heavy burden of rebutting the presumption under the "very onerous" clear-and-unmistakable-evidence standard. In this regard, the evidence of record did not show that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. See Wagner, 370 F.3d at 1096. Rather, it showed a much more severe degree of psychiatric symptomatology during service. Moreover, the Board itself had found that the Veteran's psychiatric disorder was "exacerbated by the stress of military life," which is at odds with a finding that the aggravation was due to the natural progress of this disorder. As such, the Board finds that had it applied the clear-and-unmistakable-evidence standard to the issue of aggravation in its February 1985 decision, the only reasonable conclusion is that the presumption of soundness could not have been rebutted. See id.; see also 38 C.F.R. § 20.1403(a). Because the presumption of sound condition at entrance to service could not have been rebutted when applying the clear-and-unmistakable evidence standard to the issue of aggravation, the Board would have had to assume as a matter of law that the Veteran did not have a pre-existing psychiatric disorder when he entered active service. Wagner, 370 F.3d at 1096. Thus, service connection was to be considered on the basis of whether or not the Veteran's disability was incurred in service, rather than merely aggravated thereby. See 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.306, 3.322; Wagner, 370 F.3d at 1096 (holding that if the government fails to rebut the presumption of soundness under section 1111, then the veteran's claim is one for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made); VAOPGCPREC 3-03. In this case, the Veteran's schizophrenic reaction was diagnosed as "chronic" and he exhibited his psychiatric symptoms for several months during his hospitalization from May 1973 to September 1973. Indeed, VA classifies "psychoses" as chronic. 38 C.F.R. § 3.309(a) (2011). While the Veteran's diagnosis after service was eventually changed from schizophrenia to manic affective disorder, he was still found to have psychotic symptoms. In this regard, private treatment records dated in 1979 and 1980 reflect diagnoses of manic psychosis and show observations that the Veteran was psychotic. As noted by the Veteran's representative, when a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b); Groves v. Peake, 524 F.3d. 1306, 1309-1310 (Fed. Cir. 2008) (holding that because the veteran was diagnosed with paranoid schizophrenia during service, as well as two years after service, CUE was committed in a March 1982 rating decision denying service connection for schizophrenia, and that service connection was warranted as a matter of law under section 3.303(b) even in the absence of nexus evidence). Accordingly, service connection for the Veteran's psychiatric disorder would have been warranted as a matter of law had the Board applied the correct evidentiary standard with regard to the presumption of soundness in its February 1985 decision. As such, the outcome of the Board's February 1985 decision would have been manifestly different but for the error, as it would have resulted in a grant of service connection rather than a denial. See 38 C.F.R. § 20.1404(b). In sum, the Board finds that CUE was committed in the February 1985 Board decision denying service connection for a psychiatric disorder, which warrants reversal of that decision. This finding has the same effect as if the grant of service connection for the Veteran's psychiatric disorder had been made at the time of the February 1985 decision. ORDER The February 1985 Board decision, denying service connection for a psychiatric disorder, is reversed on the grounds of clear and unmistakable error, and the motion is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs