Citation Nr: 1601279 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 08-16 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date prior to June 16, 2009, for the grant of service connection for depression, to include claims that there was clear and unmistakable error (CUE) in rating decisions dated in May 2000, and December 2006. WITNESSES AT HEARING ON APPEAL Appellant, R.F. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from February 1989 to August 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for depression, and assigned an effective date for service connection of June 16, 2009. The Veteran appealed the issue of entitlement to an earlier effective date for service connection, and in December 2011, the RO denied the claim. In July 2015, the Board remanded the claim for additional development. In July 2009, the Veteran was afforded a hearing at the RO. In May 2014, the Veteran was afforded a hearing before the undersigned, who is the Acting Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2014 & Supp. 2015). This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The RO's May 2000 and December 2006 decisions were not based on CUE as they represented reasonable applications of the known facts to the law then in existence; the factual evidence and competent medical opinion of record did not show that the Veteran was entitled to service connection for either a personality disorder, or an acquired psychiatric disorder, to include bipolar disorder. 2. An application to reopen the claim for service connection for an acquired psychiatric disorder was not received at any time after December 2006, and prior to June 16, 2009. CONCLUSIONS OF LAW 1. The RO's May 2000 and December 2006 rating decisions, which denied service connection for a personality disorder, and bipolar disorder, were not clearly and unmistakably erroneous; those unappealed rating actions are final. 38 U.S.C.A. §§ 5107, 7105 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.104, 3.105(a) (2015). 2. The criteria for entitlement to an effective date prior to June 16, 2009, for a grant of service connection for depression have not been met. 38 U.S.C.A. §§ 5101(a), 5110 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that an earlier effective date for service connection is warranted for his depression. He argues that an earlier effective date is warranted because RO rating decisions, dated in May 2000, and December 2006, which denied service connection for a personality disorder, and bipolar disorder, respectively, contained CUE. He asserts that he was mis-diagnosed with a personality disorder during service, and that a January 1998 statement from a VA physician, Dr. K.F (discussed infra) is favorable to his claim. See Veteran's statement, dated in August 2015. Clear and Unmistakable Error The Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE. "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). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-4. "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has propounded a three-prong test to determine whether clear and unmistakable error is present in a prior 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 v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). 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 and not on subsequent determinations of record. Damrel, 6 Vet. App. at 245. To establish a valid claim of CUE, the claimant must demonstrate that either the correct facts, as they were known at the time, were not before the adjudicator, or that statutory or regulatory provisions extant at the time were incorrectly applied. Daniels v. Gober, 10 Vet. App. 474 (1997). A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 96 (1995). The alleged error must be of fact or of law and, 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 CUE. Allegations that previous adjudications had improperly weighed and evaluated the evidence also can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 43-44. In a rating decision, dated on April 21, 2000, the RO denied the Veteran's claim for service connection for a personality disorder. This decision was issued to the Veteran on May 5, 2000. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (2015). The evidence of record at the time of the May 2000 rating decision included the Veteran's service treatment records, and post-service private treatment records, dated between 1978 and 1995. The Veteran's service treatment records showed that in 1990, he was evaluated for suicidal potential, with a past history of suicidal gesture. The Veteran complained that he was unhappy with his job and that he wanted out of the Navy. The report notes that he was a risk to himself and that he needed further evaluation. On examination, he was noted to be "intact," and without visual or auditory hallucinations. The assessment was suicidal ideation. In May 1995, the Veteran was noted to have directed verbal and physical abuse towards his wife, to include six violent incidents and at least one violation of a TRO (temporary restraining order). The report notes evidence of suicidal ideation. The provisional diagnoses were rule out personality disorder, and rule out danger to self. Thereafter, he was noted to have a history of "significant domestic violence." Moreover, during a psychiatric evaluation he gave contradictory and grossly minimized information, and he refused psychological testing. Allegations included a temporary restraining order (TRO) with six incidents of violence against his pregnant wife, and a three-year history of physical and verbal abuse with injuries to his wife's wrists, arms, and legs. The Veteran initially denied any history of violence towards his wife, but later admitted to striking her (slapping and punching). He stated that he broke the conditions of a temporary restraining order "every day, and admitted to physically abusing his wife and to threatening to kill her. He admitted to claiming to have suicidal symptoms because he wanted off of his ship, and to get out of the Navy. His Axis I diagnosis was partner relationship problems. His Axis II diagnosis was personality disorder, not otherwise stated with anti-social, narcissistic and sadistic features, severe. A June 1995 memorandum from the Fleet Mental Health Unit states the following: the Veteran manifests a long-standing disorder of character and behavior which is of such severity as to render him unsuitable for continued military service. This memorandum went on to state that although he is not currently considered suicidal or homicidal, he is judged to represent a risk to self or others if retained on active duty, especially in view of his history of suicidal and homicidal ideation. It is recommended that he not have access to any weapon, not operate government vehicles, work with classified materials, nor be involved in field work. His primary diagnosis is personality disorder, not otherwise stated with anti-social, narcissistic and sadistic features, severe. The Veteran's separation examination report, dated in July 1995, showed that his psychiatric condition was clinically evaluated as normal. In an associated "report of medical history," the Veteran also indicated that he did not have a history of depression or excessive worry, or nervous trouble of any sort. The Veteran's discharge (DD Form 214) indicated that he was separated from service due to a personality disorder. Following service, the evidence includes a 1998 letter from the Department of Justice, Immigration and Naturalization Service, which shows that the Veteran was refused employment. The letter notes that the Veteran's history of a personality disorder had been researched and that there were recorded incidences of violence and physical confrontations over the past several years. The letter states that the recommendation against employment was based on safety and performance efficiency concerns due to the history of alcohol abuse and recurring aberrant behavioral patterns. A statement from a VA physician, K.F., M.D., dated in January 1998, showed that the Veteran had complained that some of the information in his service treatment records was inaccurate and exaggerated. Dr. F noted that during service the Veteran had been diagnosed with a mixed personality disorder with narcissistic, anti-social and sadistic features. He stated that while the Veteran "has displayed behaviors which could be construed as criteria for a personality disorder diagnosis," it was not evident that the Veteran has shown sufficient degree of derangement of behavior to warrant a diagnosis involving anti-social or sadistic features. He concluded that, "based on my interview" with the Veteran, there is not enough evidence to confirm a specific or mixed personality disorder. At the time of the May 2000 rating decision, the law provided that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). The law further provided that personality disorders are not compensable diseases or injuries within the meaning of veterans' benefits law. 38 C.F.R. §§ 3.303(c), 4.9 (2000); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Beno v. Principi, 3 Vet. App. 439 (1992). The Board notes that the relevant laws pertaining to service connection in effect at the time of both of the rating decisions in issue are essentially unchanged from the current versions. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board finds that there was no CUE in the May 2000 rating decision, which denied the Veteran's claim of service connection for personality disorder. At the time of the RO's rating decision, the Veteran's service treatment records showed that he had undergone a great deal of psychiatric evaluation, and that he had been determined to have a primary diagnosis of personality disorder, not otherwise stated with anti-social, narcissistic and sadistic features, severe. The Veteran's discharge (DD Form 214) indicated that he was separated from service due to a personality disorder. Following service, a 1998 letter from the Department of Justice, Immigration and Naturalization Service showed that the Veteran was refused employment due to his history of a personality disorder. Dr. F's January 1998 letter also indicated that the Veteran had a personality disorder, although the exact type of disorder was not made clear. There was no competent evidence to show that the Veteran had an acquired psychiatric disorder, or that an acquired psychiatric disorder was related to the Veteran's service. Given this evidence, the Board finds that the RO applied the correct statutory and regulatory provisions to the correct and relevant facts. There is no basis to find that it was unreasonable for the RO to have determined that the Veteran was shown to have a personality disorder, and to conclude that a personality disorder was not a compensable disease or injury within the meaning of veterans' benefits law. Id. To the extent that the Veteran has argued that the RO's May 2000 rating decision failed to discuss Dr. F's statement, this cannot be considered CUE. Dr. F's letter indicated that the type of personality disorder shown during service may have been mischaracterized. Dr. F did not assert that the Veteran had a compensable (acquired) psychiatric disorder that was related to the Veteran's service. Therefore, it is not shown that a discussion or analysis of this evidence, had it been provided, would have compelled a different result. See Fugo, 6 Vet. App. at 43; see also Natali v. Principi, 345 F.3d 1375 (Fed. Cir 2004) (RO error not CUE where not outcome determinative); Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002). Based on the foregoing, there is no evidence of an "undebatable" error, which, had it not been made, would have manifestly changed the outcome at the time it was made. Luallen. Rather, a review of the evidence, and the applicable statutory and regulatory provisions, clearly demonstrates that there was no failure by that RO to apply the correct statutory and regulatory provisions to the correct and relevant facts. The arguments put forth are essentially a mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated. This does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Luallen; Fugo. In summary, the Veteran has not identified any specific finding or conclusion in the May 2000 rating decision which was undebatably erroneous. The record does not reveal any kind of error of fact or law in the May 2000 rating decision 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. Although the Board acknowledges that the Veteran's claim for service connection for depression was granted by a rating decision in February 2010, that claim was granted on the basis of evidence that was not in the record at the time of the May 2000 rating decision. Thus, the criteria for a finding of CUE have not been met and the appellant's claim that the May 2000 rating decision was clearly and unmistakably erroneous must therefore be denied. 38 C.F.R. § 3.105(a). December 2006 Decision In May 2006, the Veteran filed a claim for service connection for bipolar disorder. In December 2006, the RO denied the claim. The Veteran was notified of this decision by way of a cover letter, dated December 6, 2006. In July 2007, the Veteran filed a timely notice of disagreement, and in April 2008, the Veteran was issued a statement of the case. However, there is no record of receipt of a timely substantive appeal, and the RO's decision became final. 38 U.S.C.A. § 7105(c). To the extent that the Veteran has argued that the case of Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) warrants the conclusion that either, or both, of the RO's rating decisions in issue did not become final, there is no indication that VA took any action that would be expected to lead the Veteran to believe that an appeal was perfected as to either rating decision, and the Board cannot find any basis for waiving this requirement of a timely substantive appeal. In addition to the evidence discussed in association with the RO's May 2000 decision, the medical evidence included VA progress notes, dated between 2005 and 2006, which included "problem lists" noting a generalized anxiety disorder, depressive disorder NEC (not elsewhere classified), bipolar disorder NOS (not otherwise specified), bipolar I disorder, recurrent major depression, panic disorder without agoraphobia, alcohol abuse in remission, borderline personality disorder, and a narcissistic personality disorder. VA progress notes, dated in March 2006, showed notations of suicidal ideation. VA progress notes, dated in April 2006, showed treatment for complaints of anxiety and depression, and contained Axis I diagnoses noting "bipolar," alcohol dependence in remission, nicotine dependence, and insomnia. An August 2006 report noted MDD (major depressive disorder), and etoh (alcohol) and THC (tetrahydrocannabinol) abuse. An October 2006 report notes ongoing treatment for depression. A statement from the Veteran's girlfriend showed that she asserted that the Veteran had a six to eight-year history of symptoms that include anxiety and depression. The Board finds that there was no CUE in the December 2006 rating decision. The RO applied the correct statutory and regulatory provisions to the correct and relevant facts. In particular, there is no basis to find that it was unreasonable for the RO to have determined that an acquired psychiatric disorder, to include bipolar disorder, was not shown during service. As previously discussed, the Veteran's service treatment and personnel records showed that he had been diagnosed with a personality disorder. Following service, the earliest medical evidence of an acquired psychiatric disorder of any kind was dated no earlier than 2005, which was about 10 years after separation from service, and there was no competent evidence associating an acquired psychiatric disorder of any kind with the Veteran's service, or which showed that a psychosis existed within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309 (2006). Based on the foregoing, there is no evidence of an "undebatable" error, which, had it not been made, would have manifestly changed the outcome at the time it was made. Luallen. Rather, a review of the evidence, and the applicable statutory and regulatory provisions, clearly demonstrates that there was no failure by that RO to apply the correct statutory and regulatory provisions to the correct and relevant facts. An undebatably erroneous specific finding or conclusion in the December 2006 rating decision is not shown. The arguments put forth are essentially a mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated. This does not provide a basis upon which to find administrative error during the adjudication process. Luallen; Fugo. The appellant's claim that the December 2006 rating decision was clearly and unmistakably erroneous must therefore be denied. 38 C.F.R. § 3.105(a). Earlier Effective Date Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(2). The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160(d). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). In this decision, the Board has determined that the RO's December 2006 rating decision was not CUE. There is no subsequent correspondence that was received between December 6, 2006, and prior to June 16, 2009, which can reasonably be interpreted as a formal or informal claim for service connection for an acquired psychiatric disorder, see 38 C.F.R. § 3.155, nor has the Veteran asserted that he submitted a claim between December 6, 2006 and prior to June 16, 2009. Given the foregoing, the earliest possible effective date for the grant of service connection of the Veteran's depression is June 16, 2009. See 38 C.F.R. § 3.400(q)(2), (r); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA."). In summary, the June 16, 2009 date of receipt of the Veteran's claim is the appropriate effective date, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400; Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application). Accordingly, the criteria for an effective date for service connection for depression prior to June 16, 2009, are not shown to have been met, and the claim must be denied. See 38 C.F.R. § 3.400(q)(2), (r). Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). To the extent that the claims include CUE claims, as the VCAA, and its implementing regulations, codified in part at 38 C.F.R. § 3.159, are not applicable to CUE claims. See Simmons v. Principi, 17 Vet. App. 104, 109 (2003); Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001). As for the aspect of the earlier effective date claim that is not based on a claim of CUE, VCAA notice need not be provided, where, as here, the claim involves an earlier effective date, because the VCAA is no longer applicable. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006). In July 2015, the Board remanded this claim. The Board directed that the Veteran's claims that RO rating decisions, dated in April 2000, which denied a claim for service connection for a personality disorder, and December 2006, which denied a claim for service connection for bipolar disorder, were based on clear and unmistakable error, be adjudicated, followed by readjudication of the Veteran's claim of entitlement to an effective date prior to June 16, 2009, for service connection for depression. In November 2015, this was done. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In May 2014, the Veteran was provided an opportunity to set forth his contentions during a personal hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the May 2014 hearing, the undersigned identified the issue on appeal. The testimony did not reflect that there were any outstanding medical records available that would support his claim. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER An effective date prior to June 16, 2009, for service connection for depression is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs