Citation Nr: 0303312 Decision Date: 02/26/03 Archive Date: 03/05/03 DOCKET NO. 02-03 503A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether a decision to not infer a claim for service connection for post-traumatic stress disorder (PTSD) or other psychiatric disability prior to July 27, 1999 was clearly and unmistakably erroneous. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.W. Loeb, Counsel INTRODUCTION The veteran served on active duty in the United States Navy from December 1942 to December 1948. In an April 2001 rating decision, the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (the RO) granted the veteran's claim of entitlement to service connection for PTSD. A 50 percent disability rating was assigned, effective July 27, 1999. As a separate issue, the RO denied the veteran's claim that a May 1980 decision not to infer a claim for service connection for PTSD or other psychiatric disability was clearly and unmistakably erroneous. The veteran perfected an appeal as to the latter issue. Other issues In a December 2002 rating decision, the RO granted entitlement to a shell fragment wound of the left shoulder and assigned a noncompensable disability rating, effective April 5, 2002. The RO denied claims of entitlement to service connection for heart disease due to rheumatic fever, cervical spine injury residuals, lumbar spine injury residuals and a skin condition. To the Board's knowledge, the veteran has not disagreed with that decision or any part thereof. Accordingly, those issues are not in appellate status and will be discussed no further. FINDINGS OF FACT 1. In February 1980, the veteran filed a claim of entitlement to service connection for rheumatic fever and heat murmur. The RO administratively denied the claim on May 12, 1980 based on the veteran's failure to submit requested medical evidence. 2. The veteran initially filed a claim of entitlement to service connection for a psychiatric disability in July 1999. CONCLUSION OF LAW The May 12, 1980 RO decision did not contain clear and unmistakable error. 38 C.F.R. § 3.105 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION In essence, it appears that the veteran is contending that a May 1980 RO decision which administratively denied his February 1980 claim of entitlement to service connection contained clear and unmistakable error (CUE) because it did not infer a claim of entitlement to service connection for PTSD or psychoneurosis, based upon the presence in his VA claims folder of service medical records which referred to a "nervous breakdown" and hospitalization for psychoneurosis in April 1948. The veteran's representative has provided no specific argument. Applicability of the VCAA The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107]. Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45, 620 (August 29, 2001) [to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)]. The Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim. See Holliday v. Principi, 14 Vet. App. 280 (2001). The VCAA is generally applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Except for provisions pertaining to claims to reopen based upon the submission of new and material evidence, the implementing regulations are also effective November 9, 2000. However, in Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001) (en banc), the United States Court of Appeals for Veterans Claims (the Court) held that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to CUE motions." In concluding that the VCAA is not applicable to allegations of CUE, the Court's majority opinion explained that even though the VCAA is a reason to remand "many, many claims, . . . it is not an excuse to remand all claims." In essence, the Court in Livesay continued to hold that the VCAA is potentially applicable to all pending claims, as it had held in Holliday. However, the Court further indicated that CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim of CUE it is not by itself a claim for benefits. Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Thus, a "claimant", as defined by 38 U.S.C.A. § 5100 (West Supp. 2001), cannot encompass a person seeking a revision of a final decision based upon CUE. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to CUE motions. See also 38 C.F.R. § 20.1411(c) and (d) (2001). Based on the Court's precedential decision in Livesay, the Board concludes that the veteran's CUE claim is not subject to the provisions of the VCAA. The Board hastens to point out, however, that notwithstanding the fact that the VCAA appears to be inapplicable to this case, the veteran has been accorded ample opportunity to present evidence and argument on this matter. The veteran has thus been given all appropriate due process considerations. Moreover, he does not contend that the development of this case by VA has been deficient. In his December 2001 substantive appeal (VA Form 9), he declined the opportunity to participate in a personal hearing. The Board will therefore proceed to consideration of the veteran's allegation of CUE. CUE Final decisions may be reversed or amended where evidence establishes that CUE existed. 38 C.F.R. § 3.105(a) (2001). The Court has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination: (1) "[E]ither 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," (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 it was made," and (3) 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)] Factual background As noted in the Introduction, the veteran left service in December 1948. He immediately filed a claim with VA for dental treatment. Service connection for dental treatment purposes was established in March 1949. There is no mention of psychiatric problems in any of the correspondence between the veteran and VA in the 1940s. There is no indication that the veteran had any contact with VA for several decades thereafter. In February 1980, the veteran filed a claim for VA compensation (VA Form 21-526) for "rheumatic fever" and "heart murmer [sic]". By letter dated April 1, 1980, the RO requested additional evidence with respect to "your request for service-connection for your heart condition and rheumatic fever", to include medical reports and statement from persons who had knowledge of the claimed disabilities. The veteran did not respond to the letter. The RO obtained the veteran's service medical records in April 1980. Those records included references to a "nervous breakdown" in April 1948. The diagnosis was psychoneurosis. He was evidently returned to duty the next month. His December 1948 separation physical examination was pertinently negative. A deferred or confirmed rating decision (VA Form 21-6789) dated May 12, 1980 read as follows: "Please administratively deny the veteran's claim for s/c, as he has failed to provide the requested evidence." Nothing further appears of record until July 1999. As described in the Introduction, in the April 2001 rating decision which forms the basis for this appeal, the RO granted the veteran's claim of entitlement to service connection for PTSD, effective July 27, 1999. Analysis At the outset of its discussion, the Bord observes that the veteran has not disagreed with that part of the April 2001 RO decision which assigned July 27, 1999 as the effective date for the grant of service connection for PTSD. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [a claim is granted as to an issue, the notice of disagreement pertaining to that issue ceases to be valid in terms of instilling with the Board any authority to consider downstream issues such as the effective date]. The current appeal therefore does not involve a claim of entitlement to an earlier effective date as such. Rather, the veteran has contended that the May 1980 decision which administratively denied service connection for heart disease and rheumatic fever contained CUE because the RO should have inferred a claim of entitlement to service connection for a psychiatric disability. As indicated above, CUE claims involve only prior final decisions. See 38 C.F.R. § 3.105 (2002). The veteran's April 2002 VA form 9 referred not to the May 1980 decision but to the November 2001 Statement of the Case. The Board wishes to make it clear that the April 2001 RO decision is not final and neither it or the subsequent SOC can be the subjects of a CUE claim. The only pertinent final decision in the veteran's VA claims folder is the May 1980 rating decision. The crux of the veteran's claim is found in his statement dated April 3, 2000: ". . . had my military records been reviewed by the RO you would have found medical evidence to develop service connection for PTSD and/or psychoneurosis . . . ." It is clear that the veteran's service medical records, which were added to his VA claims folder in April 1980, referred to a "nervous breakdown" and psychoneurosis during service. However, the veteran did not request service connection for such. His February 1980 claim for VA compensation specifically mentioned rheumatic fever and heart murmur. There is nothing in the veteran's presentation in 1980, or for that matter at any time before July 1999, which indicates that he sought to file a claim for service connection for a psychiatric disability. The veteran's CUE claim comes down to his contention that the RO was required to "infer" a claim for service connection for a psychiatric disability from evidence of record in the absence of any statement whatsoever from the veteran to the effect that he in fact sought service connection for such disability. This contention is contrary to law. See 38 C.F.R. § 3.151 [a specific claim must be filed]; § 3.155 [an informal claim must identify the benefit sought]. The Court has held that an appellant must have asserted the claim expressly or impliedly. See Isenbart v. Brown, 7 Vet. App. 537, 540-41 (1995). Crucially, in Brannon v. West, 12 Vet. App. 32 (1998), the Court observed that while the VA must interpret an appellant's submissions broadly, it Board is not required to conjure up issues that were not raised by the appellant. The Court has further held that VA is not held to a standard of prognostication when determining what issues are presented. See Talbert v. Brown, 7 Vet. App. 352, 356-57; Allin v. Brown, 6 Vet. App. 207, 213 (1994): "there must be some indication . . . that [a claimant] wishes to raise a particular issue . . . . The indication need not be express or highly detailed; it must only reasonably raise the issue". [These cases involve the Board, not an RO, but it is clear that the reasoning employed by the Court applies to all levels within VA. Cf. EF v. Derwinski, 1 Vet. App. 324, 326 (1991).] In short, the veteran's CUE claim fails because there is no obligation on the part of VA to "infer" claims based on the contents of the service medical records. It was incumbent on the veteran to identify the benefit sought, if not in so many words, at least to such degree that RO personnel could reasonably conclude that a claim existed. He did not do so. In this case, the veteran did not refer to a psychiatric disability in 1980, and indeed there is no indication whatsoever that the veteran sought service connection for a psychiatric disability, including PTSD, before July 1999. In summary, for the reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the veteran' CUE claim. The benefit sought on appeal is accordingly denied. ORDER The decision to not infer a claim for service connection for post-traumatic stress disorder (PTSD) or other psychiatric disability prior to July 27, 1999 was not clearly and unmistakably erroneous. The appeal is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.