Citation Nr: 1233752 Decision Date: 09/27/12 Archive Date: 10/09/12 DOCKET NO. 07-00 139A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an effective date earlier than October 6, 1998 for the grant of service connection for schizophrenia, to include whether there is clear and unmistakable error (CUE) in an April 1994 rating decision that denied service connection for schizophrenia finding no new and material evidence to reopen the claim. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1972 to July 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The case was brought before the Board in January 2009, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. In July 2011, the Board determined that an April 1974 rating decision denying service connection for a nervous condition was not based on CUE; that an April 1994 rating decision declining to reopen a service connection claim for a nervous condition, to include schizophrenia, was not based on CUE; and the criteria for an effective date prior to October 6, 1998, for the award of service connection for schizophrenia had not been met. The Veteran subsequently appealed the July 2011 Board decision to the United States Court of Appeals for Veterans Claims. In May 2012, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court partially vacated the Board's decision and remanded the matter to the Board for further development consistent with the Joint Motion. In this regard, the Board's July 2011 determination that an April 1994 rating was not based on CUE was vacated, however, its determination that an April 1974 rating decision was not based on CUE was not disturbed. FINDINGS OF FACT 1. The Veteran was originally denied service connection for a nervous condition in November 1973, but filed a petition to reopen the claim in April 1974. 2. An April 1974 rating decision reopened the claim and denied it on the merits; the Veteran was notified of that decision and his appeal rights in April 1974. The Veteran did not appeal the decision and it therefore became final. 3. In July 2011, the Board determined that there was no CUE in the April 1974 rating decision. 4. On April 7, 1994, the Veteran filed an additional claim to reopen the issue of entitlement to service connection for a nervous condition, to include schizophrenia, which was denied in an April 1994 rating decision. 5. The Veteran did not appeal the April 1994 rating decision and it became final. 6. The April 1994 rating decision that declined to reopen the service connection claim for a nervous condition, erroneously failed to consider the provisions of 38 C.F.R. § 3.156(a) which, had such error not been made, would have manifestly changed the outcome of that decision. CONCLUSIONS OF LAW 1. The April 1994 rating decision declining to reopen a claim seeking service connection for a nervous condition, to include schizophrenia, was based on clear and unmistakable error. 38 U.S.C.A. § 1112(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1994). 2. The criteria for an effective date of April 7, 1994, for the grant of service connection for schizophrenia have met. 38 U.S.C.A. §§ 5108, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Court has held that the VCAA does not apply to CUE actions. See 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). In addition, in light of the favorable outcome shown below as to the earlier effective date claim, a VCAA analysis is unnecessary. Earlier Effective Date/CUE The Veteran challenges the establishment of the effective date of October 6, 1998, for the grant of service connection for schizophrenia. By way of history, the Veteran's service treatment records are silent as to any psychiatric treatment. His DD-214 and other service records indicate the Veteran was discharged "Under Honorable Conditions" due to drug abuse. Less than two months after the Veteran left the military, he was institutionalized in a mental health facility in September 1973. At that time he was diagnosed with various personality disorders and drug addiction. The Veteran was again hospitalized in April 1974. During this second hospitalization, however, an apparent difference of medical opinion was highlighted as to the proper diagnosis of the Veteran and the proper course of treatment. The Veteran's original claim for service connection for a mental illness, classified as a "nervous condition," was received in September 1973, two months after his separation from the military. The claim was denied in a November 1973 rating decision because despite the Veteran's immediate hospitalization in a mental institution after separation from the military, at that time, the Veteran was only diagnosed with a personality disorder. The RO determined that personality disorders (under the laws of the time) were considered developmental defects and not compensable for disability benefits as a matter of law. The Veteran was notified of that decision and his appeal rights in November 1973. No correspondence was received from him within the appeal period. The Veteran filed a petition to reopen the claim in April 1974, following another lengthy hospitalization at a mental institution. The RO reopened the claim in an April 1974 rating decision, but again found the medical evidence merely supported that the Veteran had a personality disorder and, therefore, was not entitled to service connection as a matter of law. The Veteran was notified of that decision and his appeal rights in April 1974, but did not appeal. Shortly thereafter, the Veteran was hospitalized from April 1974 to July 1974 where the physicians concluded, "Psychosis not found." Based on this evidence, the Veteran's claim was again denied in August 1974 and the Veteran did not appeal. The Veteran filed a new petition to reopen his claim in October 6, 1998, where the RO ultimately granted the claim in a November 2000 rating decision, assigning an effective date of October 6, 1998, the date of the Veteran's claim. At that time, the medical evidence clearly showed an established diagnosis of schizophrenia and a medical opinion finding it more likely than not that the Veteran's schizophrenia was present within one year of separation from the military. Initially, the Board notes the record does not show that the Veteran appealed the past 1973, 1974, or 1994 rating decisions. Indeed, the Veteran does not dispute the fact that he did not appeal these decisions. Accordingly, all rating decisions prior to the November 2000 grant are final. 38 U.S.C.A. § 7105. Where there has been a prior final denial, the award of VA benefits may not be effective earlier than the date the VA received the particular application for which the benefits were granted. Washington v. Gober, 10 Vet. App. 391 (1997). The effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii) . The current effective date of October 6, 1998, is based on the date of receipt of the new claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r). The Veteran does not dispute that he failed to appeal the past rating decisions. There are only two exceptions to the rule of finality of VA decisions, i.e., challenges based on CUE in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108). Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). As indicated, the Court has upheld the Board's 2011 decision that the April 1974 rating decision did not contain CUE. Thus, the Veteran now argues his claim should have been granted by the RO based on the evidence before the RO at the time of the April 1994 rating decision. In the alternative, the Veteran claims at the very least the RO's denial to reopen and grant his claim in April 1994 was erroneous because between the 1974 denial and the 1994 petition to reopen, the claims file contained new and material VA outpatient treatment records and VA examination reports indicating the Veteran had a psychiatric condition and not merely a personality disorder. The Veteran contends this new medical evidence should have been sufficient to reopen the claim to determine if the psychiatric diagnoses were in existence within the presumptive time frame. The April 1994 rating decision is not subject to revision on the same factual basis except by a duly constituted appellate authority or except as provided in 38 C.F.R. § 3.105. In Russell v. Principi, 3 Vet. App. 310, 313-14 (1992), the United States Court of Appeals for Veterans Claims (Court) set forth a three-pronged test to be used in determining whether clear and unmistakable error (CUE) is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at that 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 of the prior determination; and (3) 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. The Court has further stated that: 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 .... If a claimant-appellant wishes to reasonably raise clear and unmistakable error 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 clear and unmistakable error 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 clear and unmistakable error claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff'd on reconsideration, 6 Vet. App. 162, 163 (1994); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell, supra), cert. denied, 528 U.S. 967, 145 L. Ed. 2d 315, 120 S. Ct. 405 (1999). Simply claiming CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Fugo, 6 Vet. App. at 44; see also Russell, supra. Similarly, the Court has rejected as being too broad general and unspecified allegations of error based on the failure to follow regulations, failure to give due process, failure to accord benefit of the doubt, failure of duty to assist, and any other general, non-specific claim of "error." See Fugo, 6 Vet. App. at 44. If a claimant wishes to reasonably raise a CUE claim, 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, the claimant also must give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Id. There is a presumption of validity to otherwise final decisions, and the presumption is even stronger where the decision is being collaterally attacked as in a CUE claim. Id. April 1994 Rating Decision As indicated, in April 1994, the RO declined reopening the Veteran's claim seeking service connection for a psychiatric disorder finding no new and material evidence had been submitted. More specifically, prior to April 1994, the RO had denied the claim several times finding the Veteran actually suffered with a personality disorder, which is noncompensable by law, and not a mental disorder, which could be service connected. At the time of the April 1994 rating decision, the medical evidence consisted of VA outpatient treatment records and hospitalization records unequivocally showing a diagnosis and treatment for chronic schizophrenia and schizoaffective disorder. On appeal here, the Veteran claims the RO's failure to reopen the claim constitutes CUE because, at that time, the medical evidence clearly showed diagnosis and treatment for psychotic disorders, to include schizophrenia. The Veteran argues the claim should have been reopened at that time to ascertain whether his diagnosis likely existed within the presumptive one year period following separation from the military. The initial question here is whether the correct facts, as they were known at the time, were before the adjudicator in April 1994. The Board finds no indication there were actual missing records at the time of the 1994 rating decision. All VA outpatient treatment records and hospitalization records were in the claims folder, and the Veteran does not claim there was any missing evidence. Rather, the Veteran claims that because the evidence for the first time showed an undebatable diagnosis of schizophrenia, the RO should have reopened the claim to obtain a VA medical opinion with regard to likely etiology. The Veteran claims the RO's failure to do so constitutes CUE. In 1994, VA's the duty to assist Veterans in connection with a service connection claim included providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to claims to reopen, however, VA's responsibility extends to requesting evidence from any new source identified by the Veteran, and if that evidence is not new and material, the claim is not reopened, and VA has no further duties to the Veteran with respect to that particular claim. VA did not have a duty to provide the Veteran a VA examination if the claim was not reopened. See 38 U.S.C. § 5107(a) (West 1991) (the Veteran must present a claim that is "well-grounded" or plausible before triggering duty-to-assist requirements). Accordingly, the Board concludes the mere fact that the RO did not provide the Veteran a VA examination at the time of the April 1994 rating decision, which declined reopening the claim, does not constitute CUE in and of itself. Nonetheless, the Board finds CUE in the RO's 1994 decision not to reopen the claim. At the time of the 1994 rating decision, the Veteran's claim had been previously denied because the medical evidence did not show a diagnosis of a psychiatric disorder within the presumptive time frame or otherwise linked to service. When the 1994 rating decision was adjudicated, the evidence showed a diagnosis of schizophrenia. Although this evidence was considered new, the RO concluded the evidence was not material in that the medical evidence did not link the Veteran's schizophrenia to his military service and such diagnosis was not within the presumptive time frame. However, the Board finds that the new evidence showing a diagnosis of schizophrenia bore directly and substantially upon the matter under consideration at that time, and as such, should have been considered material. A finding of new and material evidence would have been sufficient to reopen the Veteran's claim for further development. Indeed, the U.S. Court of Appeals for the Federal Circuit interpreted the language in 38 C.F.R. § 3.156(a) to mean that new evidence could be material even if it was not facially sufficient to establish entitlement to service connection because the purpose of the definition was to ensure that the claim was decided on a complete record so the outcome of the claim would comport with Congress' intent of systemic fairness. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). In light of the foregoing, while the Board finds that the correct facts were before the RO at the time of the 1994 adjudication, it is clear that if the RO had appropriately applied the new and material evidence regulations, it would have manifestly changed the outcome of the decision. Thus, based on the following, the evidence supports a finding that the 1994 rating determination was clearly and unmistakable erroneous in declining to reopen the service connection claim for a psychiatric disability. As indicated, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). As such, in light of the foregoing and the medical opinion of record at the time of the November 2000 rating decision (finding it more likely than not that the Veteran's schizophrenia was present within one year of separation from the military), the correct effective date for the grant of service connection for schizophrenia is April 7, 1994, as the Veteran's claim had been pending since then. ORDER Clear and unmistakable error having been found, the claim of service connection for schizophrenia has been pending since submission on April 7, 1994. An effective date of April 7, 1994, is warranted for the grant of service connection for schizophrenia. ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs