Citation Nr: 0814926 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 06-06 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether there was clear and unmistakable error (CUE) in the November 27, 1985 rating decision, wherein the RO denied the claim of entitlement to service connection for a nervous condition, to include bipolar affective disorder and mixed personality disorder with immature features. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from March 1980 to November 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The veteran was previously represented by K.C., who withdrew his power of attorney in January 2007. K.C. notified the veteran of his withdrawal. In May 2007, the veteran was notified that his appeal was being certified and transferred to the Board. He was given 90 days to, among other things, appoint a representative. The veteran did not respond. The Board's decision to proceed in adjudicating this claim does not, therefore, prejudice the veteran in the disposition thereof. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). FINDINGS OF FACT 1. In a November 27, 1985 rating decision, the RO denied a claim of entitlement to service connection for a nervous condition, to include bipolar affective disorder and mixed personality disorder with immature features. 2. The November 27, 1985 rating decision does not contain any error of fact or 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. CONCLUSION OF LAW A valid claim of CUE in the November 27, 1985 rating decision has not been presented. 38 U.S.C.A. §§ 5109(a), 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a) (2007); Luallen v. Brown, 8 Vet. App. 92, 96 (1995), citing Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) eliminated the requirement of a well-grounded claim and redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate his claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. Considering the nature of this case, which involves a determination of whether CUE was present in a prior final rating decision, the Board holds that the provisions of the VCAA are inapplicable to the instant case. The Board believes this conclusion to be consistent with the holding of the United States Court of Appeals for Veterans Claims (Court) in Livesay v. Principi, 15 Vet. App. 165 (2001) (holding that a litigant alleging CUE is not pursuing a claim for benefits pursuant to part II or III, but rather is collaterally attacking a final decision, pursuant to section 5109A of part IV or section 7111 of part V of title 38). Therefore, the Board will proceed with consideration of the veteran's appeal. The Board notes that in February 2006, the veteran submitted records from the Social Security Administration (SSA) after the January 2006 statement of the case (SOC) was issued. They are not pertinent to the issue on appeal and were in fact submitted in support of a claim not currently before the Board. Thus, a remand for preparation of a supplemental statement of the case (SSOC) is not warranted and would only serve to further delay resolution of the claim. See Bernard v. Brown, 4 Vet. App. at 392-94; 38 C.F.R. § 19.31. Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes: his multiple contentions; service medical records; post-service private medical records; and reports of VA hospitalization and examination. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran contends that the November 27, 1985 rating decision, which denied the claim for entitlement to service connection for a nervous condition, to include bipolar affective disorder and mixed personality disorder with immature features, was clearly and unmistakably erroneous. Specifically, he asserts the following: (1) that VA failed to sympathetically read the veteran's claim and apply 38 C.F.R. § 3.303(b); (2) the RO limited their adjudication of the claim based upon non-compensability under 38 C.F.R. § 3.303(c); and (3) there was no competent medical evidence of record to support the RO's unsubstantiated findings that post-service treatment for a chronic psychiatric disorder was not related to the veteran's active duty. A decision by the Secretary under chapter 38 is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C.A. § 5109(a). The Board notes that under 38 C.F.R. § 3.104(a) and 3.105(a), taken together, a rating action is final and binding in the absence of CUE. A decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). Under applicable laws and regulations, RO decisions that are final and binding will be accepted as correct in the absence of CUE. See 38 C.F.R. § 3.105(a). The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and evaluated) or whether the statutory or regulatory provisions extant at that time were incorrectly applied. Second, 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." Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). According to the Court, CUE is a very specific and rare kind of error. "It is the kind of error, of fact or 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell at 313). The Court has defined clear and unmistakable error as administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). However, the mere misinterpretation of facts does not constitute clear and unmistakable error. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The Court has also held that the failure to fulfill the duty to assist does not constitute clear and unmistakable error. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). The essence of a claim of CUE is that it is a collateral attack on an otherwise final rating decision by a VA Regional Office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity which attaches to that final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. See Fugo at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991); See also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion before the CAVC in a claim of CUE). Historically, the veteran filed a claim of entitlement to service connection for "bipolar manic depressive" in May 1985. His DD 214 showed he received an honorable discharge in November 1981. The DD 214 further contains a narrative reason for discharge, to include unsuitability and alcohol abuse. Service medical records showed the veteran sought treatment beginning in January 1981 for reported situational depression, immaturity, and stress reaction. The veteran was diagnosed with a personality disorder, immaturity. In August 1981, the veteran sought treatment on three separate occasions for complaints, to include an inability to cope with stressful situations aboard ship, homesickness, feelings of sadness and depression, and wanting to get out of the Navy. He was diagnosed with an immature personality with adjustment reaction. In October 1981, the veteran reported a fear of an extended sea period since he was due for administrative separation as a result of his immature personality disorder. The veteran informed treatment providers that he could not await discharge. The examiner felt the veteran had an immature personality and was manipulative. The veteran was again diagnosed in October 1981 with a personality disorder, immaturity. Reports of medical history and examination dated in April 1980, May 1981, and November 1981 were devoid of complaints or diagnoses of a psychiatric disorder. Post-service, a report of VA hospitalization dated between May 20, 1985 and May 23, 1985 shows the veteran was diagnosed with possible bipolar affective disorder by history and possible personality disorder, unspecified. The veteran denied treatment prior to January 1985. On May 24, 1985, the veteran presented for voluntary admission to the VA Hospital. He was diagnosed with adjustment disorder with depressed mood. A report of VA hospitalization from June 1985 shows the veteran had no Axis I diagnosis after readmittance to the hospital. Axis II contained a diagnosis of mixed personality disorder, avoidant, dependent, passive aggressive. The discharge summary covering the hospitalization between June and August of 1985 reveals the veteran was diagnosed with probable atypical bipolar affective disorder, manic. No nexus opinions were provided for any of the periods of VA hospitalization dated between May and August of 1985. The RO denied service connection for a nervous condition, to include bipolar affective disorder and mixed personality disorder with immature features in a November 27, 1985 rating decision. The RO denied the claim on the basis that the veteran's immature personality disorder for which he was treated in service was considered a constitutional or developmental abnormality. The RO further found no other evidence that a psychosis arose within the applicable presumptive period. The veteran did not file an appeal, and the November 1985 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. The veteran made an attempt to reopen his claim. In November 1990, he submitted records from the Nevada State Hospital dated between February 1985 and March 1985 which showed he was ordered to a 21 day probate court commitment by his father for chronic, undifferentiated type, schizophrenia. Additional records from the Iowa Department of Human Services dated between 1988 and 1989, Clarinda Treatment Complex dated between 1987 and 1989, Regional Substance Abuse Center dated between 1989 and 1990, River Valley Residential Services dated between 1989 and 1990, and reports of VA Hospitalization dated between February 1987 and March 1987 show continued treatment for antisocial personality disorder, bipolar disorder with psychotic like features, substance abuse, and borderline personality disorder. The prior denial was confirmed by the RO in January 1991. The veteran filed the instant CUE claim in June 2004. In connection with a separate claim for service connection for bipolar disorder, the veteran submitted treatment notes from Burrell Behavioral Health and Dr. A.J., which showed the veteran continued to seek treatment for bipolar disorder. After VA examination in January 2006 the veteran was diagnosed with bipolar disorder. The examiner opined the veteran's depressive symptoms and behavioral difficulties in service represented the early states of the veteran's current bipolar disorder. Service connection for bipolar affective disorder was awarded in a January 2006 rating decision. The RO assigned a 70 percent rating effective June 2004. The Board has carefully considered the applicable law and the evidence of record at the time of the November 1985 rating decision, and finds that the veteran's contention regarding the assignment of CUE is without merit. His principal contention relative to the November 1985 rating decision is that the RO failed to sympathetically read his claim and apply 38 C.F.R. § 3.303(b) and that the RO limited their adjudication of the claim based upon non-compensability under 38 C.F.R. § 3.303(c). The Board finds these two arguments flawed. First, 38 C.F.R. § 3.303(b) (1985) pertaining to chronicity and continuity, states with chronic disease shown in service (or within presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic diseases in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from mere isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The Board would initially note the veteran's claim was construed liberally despite his argument. The RO characterized the claim as a "nervous condition" so as not to narrow the scope of adjudication. However, the RO specifically denied bipolar affective disorder and mixed personality disorder with immature features. While the RO did determine that the veteran was diagnosed with a personality disorder in service, which was not a disease within the meaning of applicable legislation (38 C.F.R. § 3.303(c) (1985)), the RO additionally determined that bipolar affective disorder, or any other psychosis, did not manifest within the presumptive period. Moreover, the RO made a finding that January 1985 was the first post-service treatment for probable bipolar affective disorder and there was no other continuity evidence available. The veteran has not argued, nor is there any evidence that the correct facts, as they were known at the time, were not before the adjudicator. The mere assertion of misinterpretation of facts does not constitute clear and unmistakable error. See Thompson, 1 Vet. App. at 253. While the rating decision may not have been entirely comprehensive in its discussion, there is no "undebatable" error that had it not been made, would have manifestly changed the outcome of the November 1985 decision. The findings of situational depression during service in January 1981 were arguably a mere isolated showing. Complaints of depression in August 1981 were attributed to the veteran's immature personality disorder. The November 1981 separation examination was negative for a diagnosis of a psychiatric disorder, to include bipolar disorder. Post- service, by the veteran's own admission to VA and private treatment providers, he did not seek treatment (and then only by force of his father) until January 1985, some four years after his discharge from active duty and outside the one-year presumptive period for psychoses. 38 C.F.R. §§ 3.307, 3.309 (1985). As the January 2006 VA medical opinion had not been rendered in 1985, there was no CUE based on the record and the law that existed at the time of the prior adjudication in question. The veteran has further argued that there was no competent medical evidence of record to support the RO's unsubstantiated findings that post-service treatment for a chronic psychiatric disorder was not related to the veteran's active duty. As previously noted, there were no opinions of record relating the veteran's bipolar disorder to his period of active duty service. While the veteran was not afforded a VA examination in 1985, the Court has held that the failure to fulfill the duty to assist does not constitute CUE. See Crippen, supra; Caffrey, supra. Finally, the Board notes the veteran made an ancillary argument that the RO failed to provide the applicable presumption of soundness under 38 U.S.C.A. § 1111 (then § 311). The veteran's former representative argued that since a psychiatric disorder was not noted upon the veteran's enlistment examination, the veteran was presumed sound. Therefore, the burden shifted to VA to prove that a psychiatric disorder, to include bipolar disorder, existed prior to service and that the condition was not aggravated by such service. The Board finds the argument without merit. It is true that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. However, the RO made no such finding in November 1985 that bipolar disorder existed prior to service. Thus, the RO was not required to prove that the condition was not aggravated by the veteran's active military service. In conclusion, the Board finds that there was no CUE with respect to the application of statutory or regulatory provisions. The veteran has not met the relevant burden, and, therefore, the November 1985 rating decision did not involve CUE and is final. ORDER As no valid claim for CUE in the rating decision of November 27, 1985 has been presented, the appeal is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs