Citation Nr: 1334838	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-09 649	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

Whether there was clear and unmistakable error (CUE) in the prior March 1976 rating decision which denied service connection for a nervous disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The Veteran served on active duty from September 1972 to June 1973.
 
This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued November 2007 and July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  The November 2007 rating decisions denied entitlement to an effective date earlier than December 16, 1993 for service connection for a schizoaffective disorder; and, the July 2008 rating decisions found that there was no CUE in the prior March 1976 rating decision which denied service connection for a nervous disorder.  The appellant appealed both decisions to the Board.  

In April 2008, the RO issued a statement of the case with regard to the issue of whether new and material evidence had been received to reopen a claim of entitlement to an earlier effective date for the grant of service connection for schizoaffective disorder.  The Veteran submitted additional evidence pertaining to the period after the December 1993, effective date, and the RO proceeded to issue a supplemental statement of the case on the issue of whether new and material evidence had been received to reopen the claim.  In June 2008, the Veteran wrote that he wanted to withdraw his appeal with regard to an earlier effective date but wanted to pursue the claim of CUE in the March 1976 rating decision.  The CUE issue is the only issue certified to the Board, and the only issue remaining on appeal is entitlement to an earlier effective date on the basis of CUE in the March 1976 rating decision.  38 C.F.R. § 20.204 (2013).

Therefore, as the Veteran initiated appeals in December 2007 and July 2008, both the November 2007 and July 2008 rating decisions are properly on appeal.  The issues are recharacterized as shown on the title page.  

The Board notes the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file.  Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file.


FINDING OF FACT

The April 1976 RO decision, which denied service connection for a nervous condition, considered the appropriate law and evidence and did not contain an outcome determinative error.


CONCLUSION OF LAW

The April 1976 rating decision that denied entitlement to service connection for a nervous disorder was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (1975), 3.105 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As a preliminary matter, the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to the Veteran's claim of CUE in the prior March 1976 rating decision.  The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to CUE actions. See Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).

I.   Factual Background

The evidence of record at the time of the April 1976 decision was as follows:

In November 1975, the Veteran filed an original formal Application for compensation for anxiety and depression, which he reported began in service.  He reported post-service treatment for anxiety and depression beginning in March 1974.

Service treatment records show that in February 1973, the Veteran requested a neuropsychiatric consultation because he felt pressured by the stress of mess duty.  In April 1973 there was a notation of situational stress.  The April 1976 rating decision noted reports that he felt very nervous lately and was having problems at home.  He was given a hardship discharge.  On examination for separation from service in June 1973, it was indicated that he was psychiatrically normal.

In a letter dated in October 1974, and received in November 1974, George F. Wilson, M.D., reported that about 11/2 years ago, the Veteran had begun to withdraw from contact with family and friends and show increasing anxiety and depression.  He self admitted to a clinic on August 28, 1974, and psychological testing revealed paranoid psychosis.  The Veteran was noted to have undergone electroshock treatment and antipsychotic tranquilizers.  Dr. Wilson reported that in the six months prior to hospitalization the Veteran engaged in antisocial acts that were frequently seen in adolescent males undergoing a paranoid psychotic breakdown.

The Veteran was scheduled for a VA examination in January 1976 but failed to report.  In March 1976, the Veteran was advised by letter from the RO that his claim was denied because of his failure to report for the examination.  

The Veteran underwent VA hospitalization in March 1976 for treatment of psychiatric symptoms.  No psychiatric history was reported prior to the 1974 hospitalization at the private clinic.  The diagnosis was residual paranoid schizophrenia.

In its April 1974 decision the RO found that although the Veteran had complaints of a nervous condition in service, the separation examination did not indicate the presence of a nervous condition and the evidence did not indicate the onset of a psychosis within one year of service with a paranoid psychosis first shown 14 months after service.  In May 1976, the RO sent the Veteran notice of the rating decision and of his appellate rights.  No additional evidence or communication was received by VA until 1993.

II.  Clear and Unmistakable Error

Under the provisions of 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error.  In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  

Further, 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 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. Id.   Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE.  Fugo v. Brown, 6 Vet. App. 40, 44 (1993).

Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.  It is not mere misinterpretation of facts.  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Fugo, 6 Vet. App. at 43. 

Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating 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 C.F.R. §§ 3.104(a), 3.400(k).

The United States Court of Appeals for Veterans Claims has propounded a three-pronged test to determine whether CUE is present in a prior final 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 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, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 U.S.C.A. § 310 (1993); 38 C.F.R. § 3.303 (1993, 2012) 

In this case, the Veteran contends that there was clear and unmistakable error in the March 1976 rating decision originally denying his claim.  Specifically, the Veteran's service representative noted that Dr. Wilson in an October 1974 letter indicated the Veteran had a 11/2 year history of psychological problems.  This would place them approximately from April/May 1973.  In addition if you counted back 6 months from the Veteran's self admission to the Carrier Clinic in August 1974 this approximated his symptoms for a psychiatric disorder from February 1974 or 6 months from separation from service.  

Thus, the crux of the Veteran's CUE claim is that the RO failed to assist him when he filed his original claims of service connection based on the initial October 1974 statement from Dr. Wilson and that his symptoms of a psychological disorder began in service to include treatment within 12 months of separation and that the effective date should be the date of separation or June 3, 1973.

The Court, however, has held that the failure to fulfill the duty to assist does not constitute CUE.  See Crippen v. Brown, 9 Vet. App. 412, 424 (1996).  Any breach by VA of its duty-to-assist obligation cannot form a basis for a claim of CUE because such a breach creates only an incomplete record, rather than an incorrect one.  Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994).  The Veteran's contentions essentially amount to an argument on how the RO weighed the evidence, rather than clear evidence that the RO did not properly consider the applicable regulations in adjudicating the claim.  The Court has held that "simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 44; Luallen v. Brown, 8 Vet. App. 92, 96 (1995).

While it is true that an incomplete record, or one lacking in detail, may ultimately lead to an incorrect determination, it cannot be said that an incomplete record is also an incorrect record.  If the facts contained in the record are correct, it is not erroneous, although not embodying all of the relevant facts.  Rather, an incomplete record is just that - incomplete.  It allows for further development of facts and law to advance the service member's claim.  "New or recently developed facts or changes in the law subsequent to the original adjudication may provide grounds for reopening a case or for a de novo review but they do not provide a basis for revising a finally decided case."  Russell v. Principi, 3 Vet. App. at 313.

As detailed, the RO did not explicitly acknowledge that portion of Dr. Wilson's letter reporting anti-social acts in the six months prior to his August 1974 hospitalization or Dr. Wilson's comment that such acts were frequently seen in adolescent males undergoing a paranoid psychotic breakdown.  The question is whether the failure to explicitly acknowledge these comments was outcome determinative.  In other words, had the RO acknowledged those comments would it had to have concluded that the Veteran had a psychosis to a compensable degree within one year of service?  

While Dr. Wilson's comment provided evidence that a psychosis was present within one year of service, the doctor did not state a clear conclusion that this was the case.  He merely wrote that the Veteran's behavior was frequently seen in people of the Veteran's demographic who were having psychotic breakdowns.  The RO could have read Dr. Wilson's comments as equivocal, especially in light of the report that a psychosis was not actually diagnosed until 14 months after service.  Hence the failure to explicitly consider Dr. Wilson's statements regarding the six month history of anti-social acts was not outcome determinative.

The RO weighed the in-service complaints and post service treatment reports against the normal service discharge examination, and concluded that the available evidence failed to show that the current psychiatric disability had its onset in service.  One could quibble with the way in which the RO weighed this evidence, but a dispute as to how evidence was weighed could not constitute CUE.  Russell, 3 Vet. App. at 313-14.

In sum an outcome determinative error has not been demonstrated; hence the Board cannot find CUE in the April 1976 decision that denied service connection for a nervous condition listed as paranoid schizophrenia.  


ORDER

The motion to revise or reverse the RO's April 1976 rating decision denying entitlement to service connection for a nervous condition, on the basis of CUE, is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs