Citation Nr: 0811390 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-40 224 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Whether clear and unmistakable error (CUE) was committed in a March 14, 1980, rating decision which denied entitlement to service connection for a nervous condition. REPRESENTATION Veteran represented by: Wade R. Bosley, Attorney at Law ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from October 1962 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the RO in Indianapolis, Indiana, which found that CUE had not been committed in a March 1980 rating decision denying service connection for a nervous condition. The veteran requested a hearing before the Board in his December 2005 VA Form 9. The veteran's representative indicated that the veteran no longer wanted the hearing in a February 2006 statement. The Board may proceed. See 38 C.F.R. § 20.703. FINDINGS OF FACT 1. The veteran's original claim for service connection for a nervous condition was denied in a March 1980 rating decision, on the grounds that the condition preexisted service. That decision was not appealed. 2. The RO interpreted the facts incorrectly and misapplied statutory and regulatory provisions extant in March 1980; however, it is not clear that the outcome of the March 1980 rating decision would have been different if the alleged errors had not been made. CONCLUSION OF LAW The March 14, 1980 rating decision that denied service connection for a nervous condition is not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105 (2002); 38 C.F.R. § 3.105 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA A CUE claim must be based on the record and law that existed at the time of the prior adjudication in question, and the VCAA is not applicable. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). 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). Nevertheless, a December 2005 letter to the veteran provided information regarding the information necessary to substantiate a CUE claim. II. CUE The veteran first filed for service connection for a nervous condition in January 1980. He was denied in a March 1980 rating decision, of which he was notified on March 14, 1980 and advised of his appellate rights. The veteran did not appeal and the decision became final. See 38 U.S.C.A. § 7104. The veteran submitted petitions to reopen his claim in May 1994 and June 1995. The first was abandoned by the veteran for failure to respond to the June 1995 duty to assist letter. See 38 C.F.R. § 3.158. The second was denied by a January 1996 rating decision. The veteran also claimed service connection for post traumatic stress disorder in April 1997, which was denied by the Board in May 1999. The veteran submitted another petition to reopen in January 2000 and service connection for a generalized anxiety disorder was granted in an October 2003 rating decision, and an initial rating of 100 percent assigned, effective January 11, 2000. The veteran now seeks to establish entitlement to service connection from the date of his original January 1980 claim for service connection. The RO assigned the current effective date based on the date of receipt of the veteran's successful petition to reopen. In order to establish entitlement to an earlier effective date based on the January 1980 claim, the veteran must demonstrate CUE in the prior decision on the claim. See 38 C.F.R. § 3.400(b)(2); see also Rudd v. Nicholson, 20 Vet. App. 296 (2006). The 1980 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) offered a three-pronged test to determine whether CUE was 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. The determination regarding CUE must be made based on the record and the law that existed at the time the decision was made. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Evidence that was not of record at the time of the decision can not be used to determine if CUE occurred. See Porter v. Brown, 5 Vet. App. 233 (1993). The veteran's main contention is that the rating specialist who made the March 1980 rating decision denying the veteran's claim for service connection for a nervous condition committed CUE by failing to apply the presumption of soundness and "making up" a notation of psychiatric instability on the veteran's October 1962 entrance to service physical examination report. The veteran contends that, had the rating specialist applied the presumption of soundness and not falsely portrayed the veteran's condition at entry to service, the veteran would have been granted service connection, because of the lack of evidence establishing the existence of a nervous condition prior to service that led to his discharge. The March 1980 rating decision states that the veteran's October 1962 entrance to service examination report noted "emotional instability reaction and recurring fainting attacks." The veteran's representative states that the entrance examination report contains no such language. The Board notes that the confusion stems from the fact that two entrance examinations are contained in the veteran's service medical records. The original entrance examination report does not, as the veteran's representative contends, contain the emotional instability language. The duplicate, however, does contain that language. The RO appears to have failed to notice that the entry regarding emotional instability was a late addition, dated 26 March 1963. As the veteran's representative has noted, the veteran's October 1962 entrance to service physical examination contained no reference to psychiatric abnormalities in its original version. The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). In this case, that misinterpretation of facts prevented the presumption of soundness from attaching. See 38 C.F.R. § 3.304 (1979). The veteran's representative is correct in asserting that the presumption of soundness should have attached. While the RO did commit error in interpreting the facts and not recognizing that the presumption of soundness attaches, CUE requires that the error also would have manifestly changed the outcome at the time of the prior determination. See Russell, supra. The Board notes that the evidence of record at the time of the March 1980 rating consisted entirely of the veteran's service medical records. These show that the veteran began suffering anxiety and syncope during service. The veteran's course of treatment culminated in a psychiatric evaluation, memorialized in a Neuropsychiatric Service Certificate in August 1962. The Certificate, signed by the division psychiatrist of the 1st Cavalry Division, states that the veteran had "a history of chronic anxiety and inadequate functioning...His inability to perform well is the result of deep seated psychological problems." The psychiatrist stated that "[t]he diagnosis is: Inadequate Personality. [Line of Duty]: No, [Existed Prior to Service]." On the recommendation of the psychiatrist, the veteran was given an administrative separation. Generally speaking, a personality disorder cannot be service- connected as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9. This regulation was promulgated in 1961 and has not been revised. See 26 Fed. Reg. 1579. VA General Counsel has held that service connection may not be granted for a congenital or developmental defect; however, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. See VAOPGCPREC 82-90; see also 38 C.F.R. §§ 3.306, 4.127. The Board must stress that the General Counsel opinion was issued in 1990 and was, therefore, not in effect at the time of the March 1980 rating decision. Accordingly, the failure to presume the veteran sound at entry to service had no effect on the outcome of the case. The diagnosis of record is one of a personality disorder. The RO could not, at that time, grant service connection for a personality disorder. See 38 C.F.R. § 3.303, supra. Based on the record as it existed in March 1980, the RO did make a mistake of fact and incorrectly applied the regulatory provisions in effect at the time. The Board finds, however, that this had no effect on the outcome of the case. Therefore, the Board concludes that CUE was not committed in the March 14, 1980 rating decision. See Russell, supra. The veteran argued in his December 2005 Form 9 that the failure to provide him an examination in connection with the 1980 claim was error leading to the denial of his claim. A failure in the duty to assist does not establish CUE. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In Cook, the Federal Circuit emphasized that a purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. As a result, the Board finds the veteran's remaining argument of grave procedural error to be unavailing. The Board notes that the veteran's representative's April 2006 submission references evidence in the form of a 1972 evaluation from Dr. Musselman, medical director of the Grant- Blackford Mental Health Clinic. The representative states that this evidence was in existence at the time of the 1980 rating decision. The Board has reviewed the claims file and the record at the time of the March 1980 rating decision does not contain any post service treatment records. Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). Regardless of whether the Clinic evaluation was in existence at the time of the rating decision, it was not of record and not in VA possession. The existence of such an evaluation cannot form the basis of CUE. See id. In the absence of the kind of error of fact or law which would compel the conclusion that the result would have been manifestly different but for the error, there is simply no basis upon which to find CUE in the RO decision. Accordingly, the veteran's claim is denied. ORDER The motion for revision of the March 14, 1980 rating decision on the basis of CUE is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs