Citation Nr: 9932208 Decision Date: 11/15/99 Archive Date: 11/29/99 DOCKET NO. 97-10 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether the September 1971 rating decision that denied service connection for depressive reaction was clearly and unmistakably erroneous. 2. Entitlement to an effective date prior to January 31, 1986, for the grant of service connection for psychiatric disability. REPRESENTATION Appellant represented by: Jonathan J. Moriarty, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from September 1948 to September 1949 and from October 1950 to October 1951. The veteran was awarded the Korean Service Medal with three bronze stars, the Combat Infantryman Badge and the Purple Heart Medal. This matter came to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A hearing officer conducted a hearing at the RO in August 1997, and the undersigned Member of the Board received testimony at a hearing held at the RO in August 1999. FINDINGS OF FACT 1. The veteran's original claim for service connection for a nervous condition was received at the RO on April 30, 1970. 2. In an unappealed rating decision dated in September 1971, the RO denied service connection for depressive reaction. 3. In its September 1971 decision, the RO mischaracterized the contents of the veteran's service medical records, stating they were completely negative for evidence of treatment or findings of a nervous disorder during service. 4. In denying service connection for depressive reaction in the September 1971 rating action, the RO failed to follow applicable regulations, 38 C.F.R. § 3.303(a) and 38 C.F.R. § 3.303(d), then in effect. 5. Had the RO correctly characterized the evidence in the service medical records, which showed treatment for combat exhaustion, and considered it in the context of all evidence then of record, the outcome of the decision would have been manifestly different, that is, service connection would have been compelled for psychiatric disability. CONCLUSIONS OF LAW 1. The September 1971 rating decision was clearly and unmistakably erroneous in its denial of service connection for depressive reaction. 38 U.S.C.A. § 5109A (West Supp. 1999); 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §3.105(a) (1999). 2. The proper effective date for service connection for psychiatric disability is April 30, 1970. 38 U.S.C.A. § 5109A (West Supp. 1999); 38 C.F.R. § 3.400(k) (1999); 38 U.S.C. § 3010(a) (1970); 38 C.F.R. § 4.400(a)(2) (1971). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's original claim for service connection for a nervous condition was received at the RO on April 30, 1970. In a rating decision dated in September 1971 the RO denied service connection for depressive reaction, but granted entitlement to a permanent and total rating for pension purposes. For pension purposes, the RO rated the depressive reaction as 70 percent disabling under Diagnostic Code 9405. The evidence does not show, nor does the veteran contend, that he appealed the denial of service connection for psychiatric disability within a year of notice of the decision, and that decision became final. 38 U.S.C.A. § 7105 (formerly § 4005). In a rating decision dated in June 1986, the RO granted service connection for post-traumatic stress disorder (PTSD) and assigned a 50 percent disability rating effective from January 31, 1986. In the rating decision, the RO noted that the service-connected PTSD was formerly rated under Diagnostic Code 9405. The veteran did not appeal the decision. In November 1995 the veteran claimed there was clear and unmistakable error in the September 1971 rating decision, pointing out that the RO had ignored evidence in his service medical records showing he was treated for combat exhaustion. The RO denied the claim in a rating decision dated late November 1995. In a statement received at the RO in early November 1996, the veteran expressed disagreement with the RO's decision. The Board construes this statement as a notice of disagreement with the November 1995 rating decision. Interpreting the veteran's statement as a claim of entitlement to an effective date earlier than January 31, 1986, the RO denied that claim in a rating decision dated in November 1996. The veteran disagreed, and in the statement of the case that followed in February 1997, the RO informed the veteran of the regulations concerning effective dates and clear and unmistakable error. The veteran then perfected his appeal. 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 clear and unmistakable error 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). 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Id. The veteran's service medical records were in the claims file at the time of the September 1971 rating decision. Those records include a treatment card and supplemental record showing that in early July 1951 the veteran was diagnosed as having combat exhaustion. He was put under observation and given sedatives. After 4 days, the veteran was returned to duty. At the veteran's October 1951 separation medical examination psychiatric evaluation was normal. Also of record at the time of the September 1971 rating decision was a VA hospital summary showing the veteran was admitted in April 1970 with the complaint of being depressed, having crying spells and being unable to work. In September 1970 he eloped from the hospital and was discharged against medical advice. The diagnosis was depressive neurosis. In a letter dated in July 1971, Worth M. Walrod, Jr., M.D., stated that the veteran had been under his care since May 1963 for a service-connected psychoneurosis. Dr. Walrod reported that Dr. Robert J. Williams referred the veteran to him and that he had Dr. Williams' records. He stated that the veteran had been under Dr. Williams's care since 1958. He also stated that he believed that the veteran's care was by Dr. Corio Bianco prior to 1958. Dr. Walrod noted that the veteran had been hospitalized by VA and stated that he was certain that there was no question in any of their minds that the causative factor in the veteran's psychoneurosis was the service. In the September 1971 rating decision the RO discussed the VA hospital summary and stated that a currently submitted statement from Dr. Walrod showed the veteran had been under his care since May of 1963 because of psychoneurosis. The RO did not, however, acknowledge or discuss Dr. Walrod's medical opinion relating the veteran's post-service psychiatric disability to service. The RO also stated that medical service records currently on file were completely negative for evidence of treatment or findings of a nervous disorder during service. Comparison of this statement with the evidence described above shows that the RO made a materially incorrect characterization of the service medical records which did, in fact, show that the veteran received treatment for combat exhaustion and apparently ignored the medical opinion linking the veteran's post-service psychiatric disability to service. The law then in effect provided: "Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces.... Determinations as to service connection will be based on review of the entire evidence of record...." 38 C.F.R. § 3.303(a) (1971) (emphasis added). The regulations further stated that "[s]ervice connection may 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) (1971). Had the RO correctly characterized the facts as showing the presence of combat exhaustion in service and had consideration been given to Dr. Walrod's medical opinion establishing a causal relationship between service and the veteran's psychiatric disability, the outcome of the RO's decision would have been manifestly different. With correct application of 38 C.F.R. § 3.303(a) and 38 C.F.R. § 3.303(d), the RO would have been compelled to grant service connection for psychiatric disability. The Board thus concludes that the September 1971 RO decision was clearly and unmistakably erroneous in its denial of service connection for psychiatric disability. The current effective date for the grant of service connection for psychiatric disability is January 31, 1986, assigned in the June 1986 rating decision that granted service connection for PTSD under Diagnostic Code 9411. The RO noted the disability had formerly been rated as non- service connected under Diagnostic Code 9405 (which in 1971 was the diagnostic code for depressive reaction). Clear and unmistakable error having been found in the denial of service connection for psychiatric disability in the September 1971 rating decision, that decision must be reversed and revised to grant service connection for psychiatric disability. Under this situation, the effective date is the date from which benefits would have been payable if the corrected decision had been made on September 28, 1971, the date of the reversed rating action. 38 U.S.C.A. § 5109A (West Supp. 1999); 38 C.F.R. § 3.400(k) (1999). In 1971, as now, the proper effective date of an evaluation and award of compensation based on an original claim for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date or receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 3010(a) (1970); 38 C.F.R. § 3.400(a)(2) (1971). In this case, the veteran's service separation date was in October 1951 and his claim was received at the RO April 30, 1970, clearly more than a year after separation from service. As the evidence shows service incurrence of a psychiatric disability, entitlement to service connection arose the day following separation from service. The date of receipt of the veteran's initial claim was later, i.e., April 30, 1970, and that date is the proper effective date for service connection for psychiatric disability. ORDER Clear and unmistakable error having been found in the September 1971 rating decision denying service connection for depressive reaction, that decision is reversed and service connection for psychiatric disability is granted. The proper effective date for service connection for psychiatric disability is April 30, 1970. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals