Citation Nr: 1602615 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 11-03 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an effective date prior to October 21, 1999, for the grant of service connection for major depressive disorder with secondary somatoform disorder. 2. Whether clear and unmistakable error (CUE) was committed in a September 1997 rating decision that denied entitlement to service connection for dysthymia (claimed as depression). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Dixon, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1975 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 statement of the case (SOC) issued by the Department of Veterans Affairs (VA) Regional Office (RO). In adjudicating this appeal, the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the Virtual VA and VBMS systems to ensure a total review of the evidence. FINDINGS OF FACT 1. In an unappealed decision dated in May 2004, the Board denied an effective date prior to October 21, 1999, for the grant of service connection for major depressive disorder with secondary somatoform disorder. 2. In January 2010, the Veteran requested an earlier effective date for her service-connected psychiatric condition. 3. The issue of whether the Veteran had depression or dysthymia during the period under consideration in the September 1997 rating decision, which was etiologically related to an in-service injury or event, involves a weighing of the evidence as to which reasonable minds could differ. CONCLUSIONS OF LAW 1. The May 2004 Board decision which denied an effective date prior to October 21, 1999, for the grant of service connection for major depressive disorder with secondary somatoform disorder, is final. 38 U.S.C.A. § 7104 (2014); 38 C.F.R. § 20.1103 (2015). 2. The Veteran's freestanding claim for an earlier effective date for the grant of service connection for major depressive disorder with secondary somatoform disorder must fail as a matter of law, and the appeal is dismissed. 38 U.S.C.A. § 5110(a) (2014); Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. The September 1997 rating decision which failed to grant entitlement to service connection for dysthymia was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105(c) (2014); 38 C.F.R. §§ 3.104, 3.105 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Earlier Effective Date The Board will first clarify the procedural history of the Veteran's depression and CUE claims. The Veteran first filed a claim for service connection for depression in February 1997, and was denied entitlement in a September 1997 rating decision. She did not appeal that decision and it therefore became final. See 38 U.S.C.A. §§ 5103, 5103A, 7105 (2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2015). She was subsequently awarded service connection for major depressive disorder with secondary somatoform disorder in an April 2002 rating decision, and assigned a 70 percent rating effective October 21, 1999. The Veteran appealed the assigned effective date, and in a May 2004 decision, the Board denied entitlement to an effective date prior to October 21, 1999. The Veteran did not appeal that decision and it also became final. Id.; 38 U.S.C.A. § 7104. On January 13, 2010, the RO received a statement from the Veteran requesting review of a September 2009 rating decision for clear and unmistakable error. On January 26, 2010, the RO received clarification from the Veteran's representative that she was "asking for an earlier effective date of the 9/23/1997 rating decision denying service connection for depression and not the date of 9/23/2009." In a May 2010 rating decision, the RO characterized the claim as solely for entitlement to an earlier effective date for major depressive disorder with secondary somatoform disorder and denied the claim. The Veteran filed a timely notice of disagreement in August 2010, and was issued a statement of the case in November 2010. In addition to the earlier effective date claim, the statement of the case also addressed the issue of whether there was CUE in the September 1997 rating decision. In January 2011, the Veteran filed a notice of disagreement with the denial of her CUE claim, and then filed a VA Form 9 perfecting her appeal in February 2011. A supplemental statement of the case issued in July 2011 again denied entitlement to an earlier effective date for service connection for major depressive disorder with secondary somatoform disorder, and found there was no CUE in the September 1997 rating decision. To the extent that the Veteran is attempting to raise an earlier effective date claim, that claim must be dismissed. After a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd, 20 Vet. App. at 300. This is because after a decision assigning an effective date for a service-connected disability becomes final, an appellant can only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. In short, the May 2004 Board decision which denied an effective date prior to October 21, 1999 was not appealed and became final. Therefore, the current claim seeking an earlier effective date lacks legal merit and must be dismissed. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be dismissed due to a lack of legal merit). The Board emphasizes that this decision has no impact on the issue of whether the September 1997 rating decision contains CUE, which will be discussed below. II. Clear and Unmistakable Error The Veteran alleges that VA committed clear and unmistakable error when it failed to grant her service connection for dysthymia/depression in a September 1997 rating decision. Clear and unmistakable error (CUE) is "a very specific and rare kind of error ... 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." 38 C.F.R. § 20.1403 (2015). To establish CUE, a claimant must show that (1) either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, and (2) had the error not been made, the outcome would have been manifestly different. Grover v. West, 12 Vet.App. 109, 112 (1999). Determination of an error is based on the record and law that existed at the time of the decision in question. Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc). VA's failure to comply with the duty to assist cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(2); see also Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002). Additionally, an allegation that the adjudicator improperly weighted or evaluated evidence cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(3); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994). The Veteran contends that the RO erred in its September 1997 rating decision by failing to: (1) obtain a medical opinion regarding a nexus between a documented in-service miscarriage and depression, bone and joint pain, and fatigue; (2) discuss the in-service miscarriage as evidence of a link between her dysthymia and service; and (3) properly apply 38 C.F.R. §§ 3.102 and 3.303(b). Essentially, the Veteran contends that the RO did not properly consider the fact that she had a miscarriage during service, and that had it done so and properly applied the law, entitlement to service connection for dysthymia/depression would have been established at that time. As an initial matter, the Veteran's contention that the RO committed CUE by failing to obtain a VA medical opinion regarding a possible nexus between an in-service miscarriage and post-service depression cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(2); see also Cook, 318 F.3d at 1344-45. Accordingly, that aspect of her claim is without merit. Likewise, CUE cannot be found on the basis of purported failure to apply 38 C.F.R. § 3.102. At the time of the 1997 rating decision, the relevant portion of section 3.102 stated that claims will be resolved in the Veteran's favor where there is an approximate balance of positive and negative evidence. In other words, a veteran's claim will be granted under section 3.102 only where the weight of the evidence is relatively equal. Although couched as a failure to properly apply the law, the Veteran's argument amounts to an allegation that the RO improperly weighed the evidence against her claim, and cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(3); see also Damrel, 6 Vet. App. at 245. With regard to the Veteran's allegation that the RO failed to discuss her in-service miscarriage as evidence of a link between her dysthymia and service, the Board finds that this also amounts to no more than disagreement with how the RO evaluated the evidence and cannot constitute CUE. The Veteran's service treatment records, which were available at the time of the September 1997 rating decision, documented that the Veteran had a stillbirth on December 15, 1976. She then had a child in 1980 and again in 1982, with no documented complications following the births of those children. Her service records are absent for any diagnosis of or treatment for any psychiatric condition. A November 1982 separation examination documents no psychiatric abnormalities, despite noting several other conditions. The record also contained the Veteran's post-service medical treatment records, which documented treatment for depression but did not contain any medical opinion relating the depression to service. A December 1995 VA psychiatric examination report documents that the Veteran was first evaluated for depressed mood in 1987, but was told that her depression was not severe enough to warrant medication at that time. She was not diagnosed with major depressive disorder until 1994, although she reported to medical examiners that she continued to be depressed more days than not between 1987 and 1994. The Veteran also reported that her chronic fatigue began after the birth of her second child. Specifically, she stated that she had felt totally incapacitated at that time, and although she had not felt that bad since, she had never felt like her old self again. The Veteran denied experiencing any significant trauma in the military. The examiner opined that the Veteran experienced postpartum depression in the military although it was never diagnosed or treated. The examiner also determined that it was likely that the current depression and the depression in 1987 were related in part to her marital difficulties, divorce and financial problems as well as to her difficulty with coping with her chronic pain and fatigue. The RO denied entitlement to service connection for dysthymia/depression as the evidence failed to establish a relationship to any disease or injury during military service. The RO specifically determined that as "there has been no clear attribution of the symptoms in service to any acquired psychiatric condition," the Veteran's claim was not well-grounded. Based on a review of the record at the time of the September 1997 rating decision, the Board finds that the decision did not contain CUE. First, the Board notes that evidence that the Veteran had a miscarriage during service was noted in her service treatment records which were reviewed at the time of the September 1997 decision, and the RO is presumed to have reviewed that evidence absent specific evidence indicating otherwise. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The applicable law at the time of the September 1997 rating decision required the Veteran to submit a well-grounded claim to be entitled to an adjudication of that claim. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994) (holding a claim for a nervous condition was not well-grounded and should not have been adjudicated where the Veteran failed to present any evidence of a medical causality); see also Edenfield v. Brown, 8 Vet. App. 384, 389 (1995) (noting that medical evidence may be required to fulfill the well-grounded-claim requirement where etiology or medical diagnosis is a determinative issue.) In addition to an in-service event, the elements of service-connection required evidence of a current disability and competent evidence of a causal nexus between the in-service event or injury and that current disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). While the available medical evidence in 1997 indicated that the Veteran was being treated for depression, there was no evidence linking her condition to any in-service event. Her service treatment records did not indicate any psychological symptoms or diagnoses during active service. The Veteran did not identify or submit any other medical evidence that would have established, or made well-grounded, the nexus element. Indeed, while December 1995 VA psychiatric examiner opined that the Veteran had undiagnosed post-partum depression following the birth of her second child while in service, the examiner also determined that the current depression and depression diagnosed in 1987 were likely related to post-military factors. Additionally, although the examiner also noted that the current depression was likely also related to her chronic pain and fatigue, the Veteran did not establish entitlement to service connection for fatigue and joint pain until April 2002 and August 2009, respectively. Other than the Veteran's conclusory assertions, there was no evidence, much less competent, undebatable evidence, tending to establish a causal nexus between the Veteran's service and the diagnosed dysthymia and depression. Given the facts and law at the time of the denial of her claim, the Board finds that at the very least, reasonable minds could differ as to whether the Veteran's psychiatric condition in 1997 was related to service. The Veteran's remaining contention is that the September 1997 rating decision contains CUE because it failed to properly apply 38 C.F.R. § 3.303(b). However, the Board finds that regulation did not apply in this veteran's case. The provisions of section 3.303(b) only apply to those chronic diseases listed in 38 C.F.R. § 3.309(a), which in 1997, listed psychoses as a chronic condition but did not list depression or dysthymia. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, section 3.309(c) listed dysthymic disorder (or depressive neurosis) as a disease presumed service-connected for certain prisoners of war. Dysthymia and depression were clearly contemplated by the regulation is regard to specific circumstances and considered to be distinct conditions from psychoses. As evidence of record at the time of the September 1997 rating showed that the Veteran had dysthymia and depression, the evidence did not justify consideration of section 3.303(b) and 3.309(a). Thus, failure to apply that regulation cannot be the basis for CUE. Finally, the Board acknowledges that the Veteran was granted service connection for major depressive disorder in April 2002 in part based on a link to her in-service miscarriage. However, as noted above, the relevant facts in a claim of CUE are those known at the time of the alleged error. Damrel, 6 Vet. App. at 245. Although the subsequently available evidence and medical opinions determined the Veteran's psychiatric condition to be etiologically related to her in-service miscarriage, the question is whether VA should have recognized that her condition was caused by an in-service event given the facts known at the time. The evidence at the time of the September 1997 rating decision simply does not clearly and unmistakably support the grant of entitlement to service connection for dysthymia or depression. The evidence is not in equipoise. The Board finds that the September 1997 rating decision which denied entitlement to service connection for dysthymic disorder did not contain CUE. Accordingly, the Veteran's claim is denied. III. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). With regard to the claim for an earlier effective date, the facts are not in dispute and the Veteran's claim is dismissed as a matter of law. That is, the VCAA is not applicable with regard to that issue. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive); see also VAOPGCPREC 5- 2004 (holding that under 38 U.S.C. § 5103(a), VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). As to the CUE claim, that claim is based on the evidence of record at the time of the challenged decision; there is no evidentiary development for such claims. See, e.g., Livesay v. Principi, 15 Vet. App. 165, 178 (2001) ("These rules [implementing the VCAA] make clear that several of the claimant-friendly provisions of title 38 generally applicable to the adjudication of VA benefits claims for not apply to CUE motions."; "there is nothing in the text of the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to CUE motions.") Accordingly, the Board finds that no further action is necessary to comply with the duty to assist. ORDER The appeal for an effective date prior to October 21, 1999, for the grant of service connection for major depressive disorder with secondary somatoform disorder is dismissed. Entitlement to an earlier effective date for service connection for depression on the basis of CUE in a September 1997 rating decision is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs