Citation Nr: 0117584	
Decision Date: 06/29/01    Archive Date: 07/03/01

DOCKET NO.  01-02 376A	)	DATE
	)
	)


THE ISSUE

Whether there was clear and unmistakable error in a March 31, 
1972 decision of the Board denying service connection for a 
nervous disorder. 



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Fussell, Counsel



INTRODUCTION

The veteran had active service from January 1969 to September 
1970.  

This matter comes before the Board on a motion from the 
appellant's representative for revision or reversal of a 
March 31, 1972 Board decision upholding an October 1971 
rating action which denied service connection for a nervous 
disorder, on the basis of alleged clear and unmistakable 
error (CUE) in the 1972 Board decision.  

After the 1972 Board decision, a December 1991 rating action 
granted service connection for post-traumatic stress disorder 
(PTSD) and assigned a 50 percent disability rating, both 
effective June 26, 1991 (date of receipt of a reopened 
claim).  

The veteran initiated an appeal (by filing a notice of 
disagreement (NOD)) from a June 1995 rating action which 
denied an earlier effective date for service connection for 
PTSD and which also denied service connection for 
hypertension and coronary artery disease as not secondary to 
the service-connected PTSD.  Although a statement of the case 
(SOC) was issued in December 1995, the appeal was not 
perfected by the filing of a Substantive Appeal.  

No appeal was initiated from a May 1996 rating action denying 
a rating in excess of 50 percent for PTSD.  

An appeal was initiated from a September 1999 rating action 
which (1) denied CUE in the October 1971 denial of service 
connection for a psychiatric disorder; (2) denied CUE in any 
prior rating actions in not assigning a rating in excess of 
50 percent; and, (3) denied a current rating in excess of 50 
percent for PTSD.  An SOC was issued in April 2000.  Then, an 
April 2000 rating action granted a 70 percent rating for 
PTSD; granted a total disability rating based on individual 
unemployability; and also granted basic eligibility to 
Dependent's Educational Assistance, all effective March 3, 
2000.  However, the appeal was not perfected by the filing of 
a Substantive Appeal. 
FINDINGS OF FACT

1.  A March 31, 1972 Board decision denied service connection 
for a nervous disorder.  

2.  The March 31, 1972 Board decision contained CUE inasmuch 
as there was no competent medical evidence refuting a 
diagnosis on VA examination in 1971 that the veteran had an 
anxiety reaction due to stress in Vietnam.  


CONCLUSION OF LAW

The March 13, 1972 Board decision denying service connection 
for a nervous disorder contained CUE.  38 U.S.C.A. § 7111 
(West Supp. 1999); 38 C.F.R. §§ 20.1400 thru 20.1411 (2000).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A Board decision is subject to revision on the grounds of CUE 
and must be reversed or revised if evidence establishes such 
error.  38 U.S.C.A. § 7111(a) (West Supp. 1999).  Review to 
determine whether CUE exists in a case may be instituted by 
the Board on its own motion, or upon request of a claimant at 
any time after the decision is made.  38 U.S.C.A. § 7111(c) 
and (d). 

Motions for review of Board decisions on the grounds of CUE 
are adjudicated pursuant to regulations published by VA in 
January 1999.  38 C.F.R. §§ 20.1400-1411 (2000).  According 
to the regulations, CUE 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.  38 C.F.R. § 20.1403(a).  Generally, CUE 
is present when 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.  Ibid.  Review for CUE in a prior Board decision 
must be based on the record and the law that existed when the 
decision was made.  38 C.F.R. § 20.1403(b).

The regulations cited above further provide that 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 which, had it not been made, would have manifestly 
changed the outcome when it was made; if it is not absolutely 
clear that a different result would have ensued, the error 
complained of cannot be clear and unmistakable.  38 C.F.R. 
§ 20.1403(c).  Examples of situations that are not clear and 
unmistakable include the following: (1) Changed diagnosis.  A 
new diagnosis that "corrects" an earlier diagnosis 
considered in a Board decision; (2) Duty to assist.  The 
Secretary's failure to fulfill the duty to assist under 38 
U.S.C.A. § 5107(a); and, (3) Evaluation of evidence.  A 
disagreement as to how the facts were weighed or evaluated.  
38 C.F.R. § 20.1403(d).  Moreover, CUE does not include 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).

It should be noted that the above-cited regulatory authority 
was published with the specific intent to codify the current 
requirements for a viable claim of clear and unmistakable 
error that the United States Court of Appeals for Veterans 
Claims has defined for claims of CUE in rating decisions.  
See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); 
Damrel v. Brown, 6 Vet. App. 242 (1994). Fugo v. Brown, 6 
Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 
(1994); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. 
Brown, 6 Vet. App. 377 (1994); see also Crippen v. Brown, 9 
Vet. App. 412 (1996) and Berger v. Brown, 10 Vet. App. 166 
(1997).  

In reaching this decision the doctrine of the favorable 
resolution of doubt is not applicable.  


History of the Case

The March 31, 1972 Board decision reached the following 
findings of fact:  

1.  Service medical records did not show 
complaints, finding or treatment of a psychiatric 
disorder.  

2.  Separation examination was negative for the 
presence of psychiatric disease.  

3.  Postservice evidence of anxiety reaction is 
not etiologically associated with active service.  

Based upon those findings of fact, the March 31, 1972 Board 
decision reached the following conclusion of law:  

Anxiety reaction was not incurred in or aggravated 
by the veteran's wartime service.  (38 U.S.C. 
310).  

In the March 1972 Board decision, it was stated that:

Regardless of what the extent of the veteran's 
preservice psychiatric involvement might have 
been, and it is not well-documented, no associated 
pathology was recorded in service.  Examination at 
the terminal points were within normal limits, and 
no psychiatric disability was seen in either 
complaints or findings.  The postservice showing 
of anxiety reaction is the first available 
evidence thereof, and the file will not support an 
etiological association with active service.  

The medical evidence on file at the time of the March 1972 
Board decision consisted of the veteran's service medical 
records (SMRs) and reports of VA examinations in August 1971.  

The veteran's DD 214 reflected that he served in Vietnam from 
July 30, 1969 to September 1, 1970.  He was awarded the 
National Defense Service Medal, the Vietnam Service Medal, 
the Vietnam Campaign Medal, the Bronze Star Medal, and the 
Purple Heart.  His military occupational specialty was listed 
as a field artillery mechanic.  

The veteran's service personnel records were received in 1991 
(after the 1972 Board decision) and reflect participation in 
several campaigns in Vietnam and that the veteran was awarded 
the Bronze Star Medal with "V" device as well as the 
Gallantry Cross.  

The October 1968 service induction examination found, after a 
neuropsychiatric consultation, that the veteran was 
psychiatrically fit for service.  That consultation noted 
that he had a history of a nervous stomach which had been 
treated with medication.  He had done well in high school and 
had not had any open conflict within the school or legal 
authorities.  His speech was coherent and goal directed.  His 
affect was appropriate, although his insight was poor.  The 
impressions were a mild psychophysiologic gastrointestinal 
(GI) reaction and a mild immature personality.  In an 
adjunction medical history questionnaire the veteran reported 
having or having had frequent trouble sleeping, depression or 
excessive worrying, and nervous trouble of some sort.  It was 
noted that he had GI complaints of a mild nature, for which 
he had seen a physician and for which medications had 
provided relief of symptoms.  There was no functional 
disturbance.  He complained of insomnia, depression, and 
worrying with GI symptoms.  

The SMRs are otherwise negative for signs, symptoms, history, 
complaints, treatment or diagnoses of psychiatric disability 
and the September 1970 separation examination revealed the 
veteran was psychiatrically normal.  

On VA general medical examination in August 1971 the veteran 
complained of having been nervous since returning from 
Vietnam.  He reported having sustained shrapnel wounds to his 
right arm.  He related having become increasingly nervous 
since he had gotten home, inasmuch as he had weird dreams.  
When he was around people he became sweaty and nervous.  He 
often did not feel like eating and he had irregular and less 
frequent bowel movements.  He had lost weight.  The veteran 
was to be referred for psychiatric examination.  Another 
examiner indicated that the veteran had had a grazing wound 
of the right forearm without any fracture.  He had no 
complaints related to the right upper extremity scars.  

On VA psychiatric examination in August 1971 the veteran 
reported having developed a nervous condition in Vietnam, 
stating that "[i]t kept building up", although he had not 
reported it.  The result was stomach distress and excessive 
perspiration.  He felt uncomfortable conversing with people 
and avoided people.  He was wounded in Vietnam, after which 
his nervousness increased.  He had had postservice 
difficulties readjusting to civilian life and this was 
associated with nervous tension and "weird dreams" which 
involved scenes of battle.  He continued to display a startle 
reaction and avoided social life.  He complained of anorexia, 
insomnia, and frequent headaches.  He described a good deal 
of nervous tension, even when driving a car.  On mental 
status examination it was noted that he experienced chronic 
tension.  His sensorium was clear.  There was no blocking of 
his stream of consciousness.  His affect and mood were 
appropriate to the situation.  There was no delusions or 
hallucinations.  His insight and judgment were good.  The 
diagnosis was "[a]nxiety reaction.  Stress: Vietnam.  
Personality: Predisposition not determined."  

Analysis

Initially, the Board notes that additional evidence, some of 
which is new, has been added to the claims file since the 
March 1972 Board decision consisting of, in part, statements 
of the appellant that were not previously on file at that 
time and medical evidence.  However, since these were not 
previously on file they may not be considered in adjudicating 
the motion for revision based on alleged CUE.  Also submitted 
were duplicate copies of service department records.  

It is alleged that there was CUE in the 1972 Board decision 
because of a failure to consider and apply the provisions of 
38 U.S.C.A. § 354(b) (subsequently renumbered as § 1154(b)) 
and 38 C.F.R. § 3.304(d) which provided then (as now) that 
satisfactory lay evidence of disease or injury incurred or 
aggravated in combat will be accepted as proof of incurrence 
or aggravation, even though there is no official record of 
such incurrence or aggravation.  The October 1971 rating 
action, which gave rise to the 1972 Board decision, conceded 
that the veteran had received the Purple Heart for a 
superficial grazing wound of the right forearm and granted 
service connection for the residuals of a gunshot wound.  
Thus, the veteran's participation in combat was conceded.  At 
the time of the August 1971 VA psychiatric examination he 
indicated that his nervousness had become worse after he was 
wounded in Vietnam, even though he had not sought psychiatric 
treatment during service before or after the wound or 
participation in combat.  

Although PTSD was not a recognized psychiatric diagnosis 
until approximately 1980 (see VAOGCPREC 26-97), the VA 
psychiatric examination in 1971 yielded a diagnosis of an 
acquired psychiatric disorder, classified as anxiety 
reaction, and specifically attributed the disorder to stress 
incurred in Vietnam.  In light of the provisions of 38 
U.S.C.A. § 354(b) and 38 C.F.R. § 3.304(d), it was error for 
the Board to conclude in 1972 that because an anxiety 
reaction was first shown after military service that service 
connection could not be granted absent a showing of such an 
anxiety reaction during service.  Indeed, the Board stated 
that the evidence did "not support an etiological 
association [of the anxiety reaction] with active service."  
However, this was in direct contradiction to the 1971 medical 
opinion that the anxiety reaction was a result of stress in 
Vietnam.  Moreover, there was virtually no other competent 
medical evidence on file in 1972 as to the etiology of the 
anxiety reaction diagnosed in 1972, other than the 1971 
opinion that it was attributable to military service.  

Accordingly, it is both obvious and manifest that there was 
CUE in the 1972 Board decision in failing to grant service 
connection for an anxiety reaction.  Thus, the 1972 Board 
decision (and the underlying October 1971 rating action) are 
revised to reflect a grant of service connection for anxiety 
reaction.  

A determination that constitutes a reversal or revision of a 
prior Board decision on the grounds of CUE has the same 
effect as if the decision had been made on the date of the 
prior decision.  Accordingly, the question of the effective 
date of the grant of service connection and the initial 
rating to be assigned are separate and distinct issues which 
are not before the Board and are matters to be addressed in 
the first instance by the VA Regional Office.  Should the 
veteran or his representative disagree with either the 
effective date or the rating assigned, either or both may 
initiate an appeal by the filing of an NOD.  


ORDER


The motion for revision of the March 31, 1972 Board decision 
on the grounds of CUE is granted.  



_______________________________
JAMES W. ENGLE
Acting Member, Board of Veterans' Appeals