Citation Nr: 1328402 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 06-11 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an effective date earlier than November 25, 2002 for the grant of service connection for paranoid schizophrenia for accrued benefits purposes, to include on the basis of clear and unmistakable error (CUE) in the RO's February 1968 rating decision that denied entitlement to service connection for that disability. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney At Law ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to January 1968. The Appellant is his widow. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2005 and June 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In the June 2005 decision, the RO denied entitlement to accrued benefits. In the June 2008 decision, the RO granted service connection for paranoid schizophrenia for accrued benefits purposes and assigned an initial disability rating of 50 percent, effective November 25, 2002. In March 2008, the Board granted service connection for the cause of the Veteran's death, and for a psychiatric disability for accrued benefits purposes, dismissed a claim for dependency indemnity and compensation benefits under the provisions of 38 U.S.C.A. § 1318 (West 2002); and denied the appeal for accrued benefits on the basis of CUE in the RO's February 1968 rating decision which denied entitlement to service connection for schizophrenia. The Appellant appealed the Board's denial to the United States Court of Appeals for Veteran's Claims (Court). In an October 2010 memorandum decision, the Court vacated the Board's decision and remanded the case for readjudication. In May 2011, the Board again denied the appeal for accrued benefits on the basis of CUE in the RO's February 1968 rating decision which denied entitlement to service connection for schizophrenia. The Appellant appealed the Board's denial to the Court, which in February 2013 granted a Joint Motion for Remand (JMR) of the parties (VA Secretary and the Veteran), and vacated the Board's decision and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. The issue of entitlement to Dependents' Educational Assistance benefits for the Veteran's daughter [redacted] will be decided separately. FINDINGS OF FACT 1. At the time of the Veteran's death in December 2004, there was a pending claim of CUE in a February 1968 rating decision denying entitlement to service connection for schizophrenia. 2. The appellant filed a claim for accrued benefits within one year of the Veteran's death. 3. The February 1968 rating decision that denied entitlement to service connection for schizophrenic reaction, did not contain an error that was outcome determinative. CONCLUSION OF LAW The criteria for an effective date earlier than November 25, 2002 for the grant of service connection for schizophrenia, to include on the basis of CUE in the February 1968 rating decision, for accrued benefits purposes have not been met. 38 U.S.C.A. §§ 1111, 1153, 5109A, 5110(a), 7105(c) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.100, 3.105(a), 3.151(a), 3.306, 20.200, 20.201 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The VCAA does not apply to assertions of CUE in decisions of a VA regional office. Simmons v. Principi, 17 Vet. App. 104, 109 (2003); Parker v. Principi, 15 Vet. App. 407, 412 (2002). Clear and Unmistakable Error A claimant whose VA claim has been adjudicated by the RO has one year after the issuance of written notification in which to initiate an appeal to the Board by filing a notice of disagreement. If no appeal is filed, the decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§3.104(a), 20.302, 20.1103. A final decision of the RO is subject to revision on the grounds of CUE, if evidence establishes the error, the decision will be reversed or revised. 38 U.S.C.A. § 5109A(a); 38 C.F.R. § 3.105(a). The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant 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 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). 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 such that 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 clear and unmistakable error. Fugo v. Brown, 6 Vet. App. 40, 43-45 (1993). If a claimant 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. Fugo at 44. Additionally, the mere misinterpretation of facts does not constitute clear and unmistakable error. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). What matters is whether, had the error not been made, the outcome would have manifestly been changed. See Crippen v. Brown, 9 Vet. App. 412, 421 (1996). Background When determining if there was CUE in the February 1968 rating decision, the scope of the review is defined by the law and the evidence that existed at the time of the contested decision. The February 1968 rating decision found that the Veteran's paranoid schizophrenia diagnosed in service had "existed prior to service and was not aggravated by the short period of active duty." The basis given for the decision was the Veteran's statements that he had a history of psychiatric problems prior to service, including difficulty getting along with others, problems in school, hallucinations and delusions, substance abuse, anxiousness, and depression. The RO further noted that the diagnosis of schizophrenia included symptoms that became manifest with minimal stress of routine active duty military service. The Veteran was notified of the February 1968 decision in a letter sent by the RO in March 1968. The letter was accompanied by VA Form 21-4107, which advised him of his appellate rights. No response or additional information was received by VA until May 1978. Because a notice of disagreement or a new and material evidence was not received within one year of the notice of the February 1968 decision it became final, absent CUE. 38 U.S.C.A. §§ 7105(b)(1), (c) (formerly 38 U.S.C.A. § 4005(b)(1), (c)); 38 C.F.R. § 20.1103 (2012). At the time of the February 1968 rating decision, as now, the law provided that every Veteran was presumed to have been in sound condition when examined, accepted, and enrolled for service, except with respect to defects, infirmities, or disorders noted at the time of examination, acceptance or enrollment, or where there was clear and unmistakable evidence that the injury or disease existed before acceptance into service and was not aggravated by service. 38 U.S.C.A. § 1111 (formerly 38 U.S.C.A. § 311). This is known as the presumption of soundness. The regulation implementing the presumptions of soundness differed in that it required only clear and unmistakable evidence that the disability existed prior to servicere and made no mention of the aggravation prong. 38 C.F.R. § 3.304(b)(2004). Because of the conflict between the statutory language and the language of the regulation, the regulation was determined to be invalid by the VA General Counsel. VAOPGCPREC 3-2003 (2003). The Federal Circuit adopted the General Counsel's position in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this instance, the Court has specifically found that Wagner was a statement of what the statute creating the presumption of soundness has meant since it was enacted in 1958. The Federal Circuit subsequently held that its decision in Wagner was a statement of the law as it had existed at all times since the enactment of the presumption of soundness. See Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). The statute was in effect at the time of the February 1968 decision. See Act of Sept. 2, 1958, Pub. L. No. 85-857, § 3111, 72 Stat. 1105, 1119. A preexisting injury or disease was considered to have been aggravated by active military, naval, or air service, where there was an increase in disability during such service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 353 (currently 38 U.S.C.A. § 1153); 38 C.F.R. § 3.306(a) (1968). However, aggravation was not to be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran's December 1966 pre-induction examination reveals that there were no psychiatric abnormalities noted at the time he entered service. On the December 1966 pre- induction report of medical history the Veteran related frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble. Service treatment records reflect that in August 1967, about three months after service entrance, the Veteran was referred to mental health counseling due to extreme difficulty in getting along with peers in his unit as well as psychiatric symptoms, such as anxiety, suspiciousness, and inappropriate behavior. He told the mental health provider that he had a long history of being unable to deal with other people, that he had been a "nervous person most of his life," and that his mother had requested that he see a psychiatrist prior to service. He also reported that he had dropped out of college because of his grades. The mental health provider then diagnosed paranoid schizophrenia. An August 1967 treatment record from Brooke General Hospital indicates that the Veteran had been referred for a mental health evaluation during his third week of basic medic training. At that time, he reported chronic difficulty in relating to others and chronic mistrust of other people, and said he liked to stay at home in his room and daydream while sitting on the floor and had "always been" a shy person. He also gave a history of chronic excessive alcohol and drug use and chronic auditory hallucinations prior to service. He described feeling increasingly anxious and depressed during his active duty service. The medical professional who conducted the August 1967 psychiatric evaluation concluded that the Veteran's psychiatric disability, diagnosed as paranoid schizophrenic reaction, did not occur in the line of duty. This opinion was based on the Veteran's chronic difficulties in relating to others, chronic school difficulties, his reported auditory hallucinations and paranoid delusions prior to service, his reported chronic drug and alcohol use prior to service, his chronic periods of anxiousness and depression prior to service, and his relatively brief tour of active duty. A September 1967 Medical Board report included a finding that the Veteran's diagnosed schizophrenic reaction did not occur in line of duty, was not incident to service, had existed prior to service, and was not aggravated by service. A December 1967 VA treatment record (VA Form 10-111) indicates that the Veteran had been hospitalized for psychiatric problems after approximately 2 months of military service. He reported a history of difficulty relating to others in the past and suicidal thoughts. He was a shy person who was an average student in high school, but he dropped out of college because he was faced with a suspension. He also had a history of feelings of inferiority. Concurrent with his service separation, beginning in January 1968, the Veteran was treated as an inpatient at the VA Medical Center in New York City, based on the findings of the Medical Board that he was a danger to himself and others. At the time of his admission, he denied symptoms of depression and suicidal ideation and stated that he had lied to the Army doctors and tried to appear mentally ill in order to get out of the Army. He denied any auditory hallucination s and was found to be coherent and relevant on examination, although his affect was flat and he was suspicious and evasive. The Veteran informed his treatment providers that he "didn't want the responsibility of being out on a battlefield . . . so I sat on the floor and sulked." He said that he lied about his use of drugs and alcohol and that his parents had lied to help him get out of the Army. He stated that he had invented stories of hallucinations, delusions, suicidal and homicidal ideation as a form of malingering. The mental health providers noted that the "intent to deceive, deliberately, by means of anything from outright lies to distortions or exaggerations, is felt to be clearly present in this [patient]." The providers arrived at an ultimate diagnosis of residual schizophrenia based in large part on his impaired thinking, judgment and logic, to include as shown by his inability to grasp the seriousness of faking a mental illness to get out of service and his expectation of avoiding punishment for such behavior. The Veteran (and, by extension, the Appellant) alleged that there was CUE in the February 1968 rating decision because there were no psychiatric abnormalities noted at the time he entered service, meaning that the presumption of soundness applied, but the RO did not properly apply it. Specifically, the Veteran contended that contrary to the RO's findings, the evidence was not clear and unmistakable that his psychiatric disability pre-existed service and that it was not aggravated in service. In the Appellant's brief to the Court, she argued aggravation was shown by the Veteran's reports at the August 1967 mental health evaluation that he felt "increasingly anxious and depressed" and was doing "increasingly weird and bizarre things." In the October 2010 Memorandum Decision, the Court concluded that the Board was not wrong to find that the RO's reliance on the Veteran's own statements of his symptoms prior to service and the Medical Board report in service was sufficient grounds for rebutting the presumption of soundness. Rather, the Court determined that the Board's decision did not adequately discuss the aggravation prong of the presumption of soundness. The Court stated that the Board had "correctly determined that there was clear and unmistakable evidence" that the Veteran's mental health disability pre-existed service, but should have also address whether the RO in 1968 had clear and unmistakable evidence that the condition did not increase in severity during service or that any increase was due to the natural progression of the disease. Because of the failure to address both prongs, the Court found the Board's decision lacked sufficient reasons and bases to find that the presumption of soundness was not rebutted. In the February 2013 JMR, the parties agreed that the Board's decision of May 2011 lacked an adequate statement of reasons and bases which addressed the aggravation prong of the presumption of soundness. Specifically, the JMR stated that the parties could not determine what part of the aggravation prong was relied on in the decision, whether the condition did not increase in severity or whether there was increase but as part of the natural progression of the disease. Analysis The February 1968 decision specifically found that the Veteran's schizophrenia had existed prior to service and was not aggravated during service. It did not make a specific finding that there was clear and unmistakable evidence that the disability had pre-existed service and not been aggravated. The question is whether this failure was outcome determinative; i.e. was there clear and unmistakable evidence that the disability had pre-existed service and not been aggravated? With respect to the pre-existing condition prong of the presumption of soundness, there was clear and unmistakable evidence at the time of the February 1968 rating decision to support such a finding. Specifically, the history provided by the Veteran showed social impairments, inappropriate behavior, substance abuse, difficulty in school, and even hallucinations and delusions prior to entering service. He was competent to report these symptoms. In addition, as noted in the August 1967 mental health assessment, the Veteran's symptoms were manifested within a short time after entering military service, which indicated that they did not necessarily begin in service. A bare conclusion, even one written by a medical professional, without a factual predicate in the record does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness; however, a medical report based on statements by the Veteran can serve to provide clear and unmistakable evidence to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345, 347 (1998). The specific mental health reports considered by the RO included discussion of the Veteran's history, based on his own reports, and were appropriate for use as the basis of the rating decision. With respect to the question of aggravation in service, the Veteran's own statements again provided key to a determination. At the time of the RO's February 1968 decision, all of the evidence of record supported a conclusion that not only had the Veteran's mental health disability existed prior to service, it had also not been aggravated by his military service. In fact, the VA hospitalization records from January 1968 noted that the Veteran's symptoms had largely disappeared after his transfer to New York City, even without antipsychotic medication, and list a diagnosis of schizophrenia in remission. Moreover, while the Veteran did not deny pre- existing mental health symptoms, he and his parents insisted that all of the symptoms manifested in service, including his reports of hallucinations and suicidal and homicidal ideation, were fabricated in order to get him out of the Army. Based on this evidence, the RO had sufficient grounds to conclude that the Veteran's schizophrenia clearly and unmistakably pre-existed service and was not aggravated in service. The Veteran's own statements, never denied at any point, of mental health symptoms prior to service and the brief term of his military service at the point he first manifested psychiatric symptoms demonstrated that the disability pre-existed his service. In addition, the Veteran's own statements to VA providers in January 1968, along with the conclusions offered by those providers, demonstrated that the Veteran's mental health disability had not been aggravated by service. Rather, those symptoms had largely abated by the time of his transfer to the New York City VA facility, which suggested a temporary exacerbation of symptomatology at most, and the Veteran himself insisted that those symptoms were a fabrication on his part. Thus, the reference cited by the Appellant, to "increasingly" severe symptoms in service is not sufficient to rebut the conclusion by the RO that the condition was not aggravated by service. In short, based on the evidence of record at the time of February 1968 rating decision, the condition cannot be said to have become more severe, where the symptoms cited as showing increased severity were shown to have been fabricated by the Veteran. The Veteran's representative has argued that Medical Board report merely contained a checkmark indicating that the disability had not been aggravated; but the report also included discussion of current symptoms and those reported prior to service. In addition the RO also had the VA hospital records noting current symptoms and the finding that the disability was in remission. This is not a case in which a decision was based on a checkmark without supporting documentation. The Veteran's representative has also furnished a Department of Defense Directive dated in September 1968. He points out that the directive provides for rebutting the presumption of soundness with a preponderance of the evidence rather than clear and unmistakable evidence. While the Medical Board may only have had to find a preponderance of the evidence in support of its determination as to aggravation; the Medical Board finding was probative, in conjunction with the other evidence of record, of whether there was clear and unmistakable evidence that there had been no aggravation. Its finding that a preponderance of the evidence supported a finding of no aggravation did not preclude a VA finding that the overall evidence was clear and unmistakable. In essence, the Board here must address two separate determinations, based on two different standards, both of which use the phrase "clear and unmistakable." In evaluating whether there was CUE in the February 1968 rating decision that the Veteran's paranoid schizophrenia clearly and unmistakably pre-existed service and was not aggravated in service, the Board has determined that the decision was not clearly and unmistakably erroneous. Where reasonable minds could differ, as here, on whether there was clear and unmistakable evidence that the Veteran's pre-existing paranoid schizophrenia was not aggravated by service, then by law there cannot be a finding of clear and unmistakable error. Fugo v. Brown, 6 Vet. App. 40, 43-45 (1993). The Medical Board found that the Veteran clearly had paranoid schizophrenia and the VA providers in January 1968 concluded that the diagnosis was still appropriate. However, it was also concluded that the disability had gone into remission. While he was reportedly still very suspicious, evasive and defensive; the RO could reasonably have concluded that these residual symptoms were no more, or less severe, than the reported social impairment and inappropriate behavior reported prior to service. As such, the Board finds that there was no clear and unmistakable error, in that the facts as they were known at the time were before the adjudicator. The RO erred in not explicitly stating that there was clear and unmistakable evidence of pre-existence and aggravation; but this was not outcome determinative in that there was evidence of record that would have supported such findings. The Joint Motion was premised on the Board's failure to discuss whether there was clear and unmistakable evidence that there had been no increase in the disability as opposed to clear and unmistakable evidence that any increase was due to natural progression. The RO had before it no evidence that any increase was due to natural progression. The RO did have detailed findings that there had been a temporary exacerbation of the pre-existing disability with improvement to no worse than the baseline that had existed prior to service. Evidence associated with the claims file after the February 1968 decision eventually resulted in reopening of the claim and a determination that the mental health disability did not exist prior to service. However, this evidence, including testimony during a July 1979 hearing at the RO by a medical professional and letters from Alan J. Reis, M.D. dated in January 2003 and August 2005, did not exist at the time of the February 1968 decision and thus could not have been considered in that adjudication. As there has been no showing of CUE in the February 1968 rating decision and the Veteran did not appeal the decision, that decision became final and binding on the Veteran. The RO denied a petition to reopen the claim for service connection for schizophrenic reaction in an August 1979 rating decision. The Veteran did not appeal this decision and it also became final. An October 1999 Board decision has also denied a claim alleging CUE in the August 1979 rating decision. The Veteran never submitted any unadjudicated formal petition to reopen the claim for service connection for a psychiatric disability subsequent to the August 1979 rating decision and prior to November 25, 2002, nor is there any prior communication in the record that could be considered an informal claim for the same. Thus, when the RO granted the Veteran's November 25, 2002 petition to reopen the claim for accrued benefits purposes, the date of receipt of that petition was the earliest possible effective date. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i); (where a claim is received over a year after separation from service, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later). As the effective date of the grant of service connection for the Veteran's paranoid schizophrenia for accrued benefits purposes is the earliest possible, the Appellant's claim for an earlier effective date, to include on the basis of CUE in the February 1968 rating decision, must therefore be denied. ORDER Entitlement to an effective date earlier than November 25, 2002 for the grant of service connection for paranoid schizophrenia, to include on the basis of CUE in the RO's February 1968 rating decision which denied entitlement to service connection for that disability, for accrued benefits purposes, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs