Citation Nr: 1126239 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 05-26 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether there was clear and unmistakable error (CUE) in the November 1980 rating decision, denying service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis). (The issue of entitlement to an effective date earlier than May 6, 2004, for the award of service connection for posttraumatic stress disorder (PTSD) is the subject of another decision.) REPRESENTATION Veteran represented by: Rebecca J. Bernhard, Attorney at Law WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1966 to April 1969, where he earned several decorations and medals, including a Navy Achievement Medal with a combat device, for his heroic actions during his service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in St. Paul, Minnesota, in which the RO determined that a November 1980 rating decision, denying service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis), did not contain CUE. The Veteran timely appealed the denial of his CUE claim. In an unappealed November 1980 rating decision, service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis) was denied. As a result, that rating decision is considered final. At a March 2006 videoconference hearing before one of the undersigned Veterans Law Judges at the RO, the Veteran provided testimony with regard to the issue of entitlement to an earlier effective date for the grant of service connection for PTSD; a transcript of that hearing is associated with the claims file. During that hearing, the Veteran raised the issue of CUE in the November 1980 rating decision as another theory of entitlement to an earlier effective date for the grant of service connection for PTSD. In May 2007, the Board remanded the case in order for the RO to adjudicate the inextricably intertwined issue of CUE in the November 1980 rating decision. The RO issued a June 2007 rating decision, denying the Veteran's CUE claim. In June 2008, the Veteran submitted a timely notice of disagreement (NOD) with the June 2007 RO's denial of the Veteran's CUE claim. After the issuance of a statement of the case, in October 2008, the Veteran submitted a timely substantive appeal. The Veteran and his spouse provided testimony with regard to his CUE claim during a Travel Board hearing before the undersigned Acting Veterans Law Judge in July 2010 at the RO; a transcript of that hearing is associated with the claims file. In a June 2011 statement, the Veteran waived his right to appear at an additional hearing before a third Veterans Law Judge. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an unappealed November 1980 rating decision issued in December 1980, the RO denied service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis). 2. The November 1980 rating decision, denying entitlement to service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis), was supportable by the evidence then of record and was consistent with the applicable law and regulations extant at that time. CONCLUSION OF LAW The unappealed November 1980 rating decision, denying service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis), does not contain CUE. 38 U.S.C.A. §§ 5109A, 7105 (West 1991 & West 2002); 38 C.F.R. § 3.105(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Given the parameters of the law surrounding CUE claims (as explained in more detail below), the duties to notify and assist imposed by VCAA are not applicable where CUE is claimed in RO decisions. See Parker v. Principi, 15 Vet. App. 407 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (VCAA is inapplicable to CUE claims in Board decisions). A claim based on 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. See Livesay, 15 Vet. App. at 178-79. Moreover, that litigant has the burden of establishing such error on the basis of the evidence then of record. See Id. (emphasis added). Further discussion of VA notification or development duties owed the Veteran in connection to his CUE claim is unnecessary. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although there is 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 analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the 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). A decision of a duly constituted rating agency or other agency of original jurisdiction will be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification of such. See 38 C.F.R. § 3.104(a). Previous determinations, which are final and binding, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. See 38 C.F.R. § 3.105(a). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 3.105. See 38 C.F.R. § 3.104(a). A claim of CUE is a collateral attack on a final decision by a VA Regional Office or the Board. Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002) (en banc), cert. denied, 123 S. Ct. 2574 (2003); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999). Pursuant to 38 U.S.C. § 5109A(a), an RO decision is subject to revision on the grounds 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). CUE is a very specific and rare kind of "error." Specifically, It is a kind of error, of fact or of law, that when called to the attention of later reviewers compels a 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 v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The Court propounded a three-pronged test to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell, 3 Vet. App. at 313-14). The mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The error must be one, which would have manifestly changed the outcome at the time that it was made and must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium); aff'd sub nom., Andre v. Principi, 201 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than mere disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). Broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious. See Fugo, 6 Vet. App. at 44; see also Russell, 3 Vet. App. at 313-14. Furthermore, any breach by VA of its duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete record rather than an incorrect one. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Crippen, 9 Vet. App. at 424; Caffrey, supra. At the time of the November 1980 rating decision, in general, service connection could be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131 (West 1991) (formerly 38 U.S.C. §§ 310, 331 (1958); 38 C.F.R. § 3.303 (1980)). That a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran filed his claim for service connection for delayed stress neurosis in October 1980. Service connection for posttraumatic stress neurosis was denied in a November 1980 rating decision because "such disability [was] not shown by the evidence of record." The evidence noted in the rating decision included Vet Center records from the St. Paul Vet Center from 1979 to 1980, which documented the Veteran's participation in a RAP group for Vietnam Veterans. Those records document that the Veteran first began going to the Vet Center in May 1979, at which time several symptoms of the Veteran's condition were noted, including obsession with Vietnam, nightmares, combat dreams, and alcohol abuse. However, under the "Impressions" section of the Veteran's intake examination, no diagnosis was rendered, noting that the Veteran would be an active participant in the RAP group who would be able to introspect and evaluate. Under the "Plan" section, it was noted that the Veteran "does not seem to see himself as seeking psychiatric treatment but rather participation in a self-help group of Vietnam Veterans, working through their common problems [in regards to their] Vietnam experience[s]. Because of that reservation, other clinic intake steps (testing, P.E., lab, etc.) were deferred for [Dr. F.]'s opinion as to their necessity." Those records also included weekly notes on the RAP group's activities, as well as some observations of the Veteran's condition throughout the participation in the RAP group sessions from June 1979 to April 1980. No diagnoses of any psychiatric condition were provided in any of the handwritten and/or typed RAP group reports, by either Dr. S. or Dr. F., both of whom were Vet Center doctors running the RAP group. In a June 1980 letter, Dr. S. indicated that the Veteran had been a participant in the RAP group from June 1979 to April 1980, noting that he quickly became one of the patient leaders of the group. That letter revealed that the Veteran had been interviewed by a local newspaper, who did a 5-issue series on the Veteran and his family with regards to his experience in Vietnam, and that the Veteran also appeared in a independent documentary filmed during the RAP group's last two meetings, in which the Veteran summarized some of the group experiences and what he had "gotten out of it." Dr. S. concluded his letter by stating that the Veteran: does not carry a psychiatric diagnosis and certainly does not need one at this time. He has shown remarkable growth during the past few years and during the time he was in the group. He has expressed a willingness to come back as a co-therapist should we need to start additional Vietnam RAP groups. In October 1980, the RAP group had a 6-month reunion; and in a report dated the same month, Dr. S. noted that the Veteran was "making a good adjustment and apparently has not had any need for further veterans services." On appeal, during testimony and in various statements, the Veteran has asserted that there is CUE with the November 1980 rating decision. Specifically, the Veteran argues that he was diagnosed prior to his participation in the RAP group in a private 1977 MMPI inventory. He submitted a copy of that inventory with his appeal in December 2005. The 1977 MMPI actually reveals that the Veteran suffered "from a passive aggressive personality with a distress syndrome (anxiety and depression)." Moreover, the Veteran indicated that the symptomatology noted at that time was similar to the symptomatology that he was currently experiencing, and that such is evidence that he had PTSD in November 1980. He further has submitted both the series of newspaper articles as well as the video noted in Dr. S.'s June 1980 letter, which addressed the Veteran's problems. In addition, there is an undated Vet Center letter, revealing that the Veteran first sought treatment at the Vet Center in December 1980, and that he had "bygone treatment for post-combat stress." It further reflects that the Veteran sought treatment in another RAP group from January 1981 to May 1981. Additionally, the Veteran has asserted that when he originally made his claim in 1980 that PTSD was a newly-coined term, and that very little was known about it at that time. He further asserted that in 1980 it appeared that VA had a bias against such PTSD, or delayed stress, claims, and that he even failed to appeal his November 1980 denial because he was told by the "Staff at the Vet Center that any attempt to appeal the decision would be a 'waste of time.'" Even if the Veteran was misinformed as he contends, the Board cannot grant his claim on that basis. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994). The Board emphasizes that regulations are binding on all who seek to come within their sphere, "regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance." See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (citing Fed. Crop Ins. Corp. v. Merrill, 68 S. Ct. 1, 3 (1947)). Here, there merely exists a difference of opinion of the weighing and evaluation of the evidence in this case, which does not rise to the level of a CUE claim. While the Veteran has submitted the 1977 MMPI results, the newspaper article and the video, and later Vet Center documents showing that the Veteran had PTSD symptoms, as well as an undated Vet Center letter revealing that the Veteran was having "bygone treatment for post-combat stress" beginning in December 1980, those post-decisional documents cannot be considered by the Board in this matter as they were not before the adjudicators at the time of the November 1980, nor could they have been considered as part of the record at that time. The incompleteness of the record in this case, or in the case of the Vet Center documents, cannot be the basis of a claim for CUE as any breach by VA of its duty to assist creates only an incomplete record rather than an incorrect one. See Tetro, supra; Crippen, supra. Instead, the evidence of record clearly demonstrates that neither Dr. F. nor Dr. S. gave the Veteran any formal clinical psychiatric diagnosis during 1979 or 1980 during the time period when he was participating in the RAP group. In fact, Dr. S. clearly stated in his June 1980 letter that the Veteran did not have a psychiatric diagnosis nor did he warrant one at that time. Also, the evidence demonstrates that the Veteran also did not appear to believe that he was seeking formal psychiatric treatment. Instead, the Veteran saw himself as more of a leader of these RAP groups, even offering to come back as a "co-therapist." No other clinical evidence was of record at the time of the November 1980 rating decision, which showed that the Veteran had a psychiatric diagnosis at that time. The Board is cognizant that the May 1979 document included documentation of several psychiatric symptoms that are common to a diagnosis of PTSD, and the Board is further cognizant that PTSD was a new diagnosis at the time the Veteran filed his claim in 1980. However, such does not change the clear facts, recounted above, that the Veteran lacked a clinical diagnosis of any psychiatric disorder when his claim was denied in November 1980. Such facts are not debateable in this case. While the Veteran is adamant that he had PTSD when he filed his claim for service connection in 1980, he was not competent to self-diagnose himself with a psychiatric disorder in 1980. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Also, any lay evidence of such a belief is not competent either, as the Veteran is no more competent to self-diagnose himself currently than he was in 1980; and even if he were, any such evidence would not have been part of the record at the time of the November 1980 denial. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court held that in a case where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law. However, in Simmons v. Principi, 17 Vet. App. 104, 115 (2003), the Court held that where the basis for the Board's decision denying a claim of CUE in a rating decision is the claimant's failure to plead CUE with the specificity required by Fugo, the remedy is dismissal without prejudice, and not denial. Accordingly, the appellant's arguments amount to no more than a dispute over how the RO weighed the evidence and a breach of VA's duty to assist. As such, his arguments do not meet the specificity required of CUE claimants; the Board will dismiss the appellant's claim without prejudice. Id; see also Hillyard v. Shinseki, 24 Vet. App. 343, 352-53 (2011) (holding that there is a difference between the Board and RO decisions with respect to CUE Claims, particularly in light of Disabled American Veterans (DAV) v. Gober, 234 F.3d 682, 699 (Fed. Cir. 2000) and 38 C.F.R. § 20.1409(c) which note that Board decisions of CUE cannot be re-challenged and are to be dismissed with prejudice on subsequent attempts, while RO decisions are not subject to similar treatment). (CONTINUED ON NEXT PAGE) ORDER The claim of CUE in the November 1980 rating decision, denying entitlement to service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis), is dismissed without prejudice. _______________________________ ______________________________ M. R. VAVRINA BARBARA B. COPELAND Acting Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________ CHERYL MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs