Citation Nr: 1628353	
Decision Date: 07/15/16    Archive Date: 07/28/16

DOCKET NO.  15-06 045	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 

2. Whether the August 1979, rating decision, which denied a claim of service connection for blackout spells with dizziness and blurred vision was the product of clear and unmistakable error (CUE). 

3. Whether the August 1979, rating decision, which denied a claim of service connection for cardiovascular disease, to include congestive heart failure, was the product of CUE. 

4. Entitlement to a total disability rating due to individual unemployability (TDIU), including on an extraschedular basis.


REPRESENTATION

Appellant represented by:	Paul M. Goodson, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel


INTRODUCTION


The Veteran served on active duty from April 19, 1946, to July 17, 1958, and from July 28, 1958 to August 31, 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for PTSD and assigned a 50 percent disability rating effective from January 19, 2011, and determined that CUE was not found in the August 1979 rating decision which denied claims of entitlement to service connection for a cardiovascular disease and blackout spells with dizziness and blurred vision.  

In May 2016, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the electronic claims file.

During this appeal, the Veteran raised the issue of TDIU, claiming he was unable to work due to his PTSD.  The United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his initial increased rating claim pursuant to Rice.  Therefore, it has been added as an additional issue for current appellate review.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to an initial rating in excess of 50 percent for PTSD and entitlement to a TDIU rating are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The August 1979 rating decision, which was confirmed in a September 1979 rating decision, considered the applicable law and regulations in effect at that time and was appropriately supported by the evidence then of record.  


CONCLUSIONS OF LAW

1. The August 1979 and September 1979 rating decisions that denied entitlement to service connection for a cardiovascular disease, to include congestive heart failure, were not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. §§ 3.104, 3.105(a)(2015). 

2. The August 1979 and September 1979 rating decisions that denied entitlement to service connection for blackout spells with dizziness and blurred vision, were not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. §§ 3.104, 3.105(a)(2015).



REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

With respect to the allegations of CUE, the United States Court of Appeals for Veterans Claims (Court) has held that the statute pertaining to CUE in a RO decision, 38 U.S.C.A. § 5109A, explicitly provides for reversing or revising an incorrect decision, and since CUE requests are not claims for benefits, the Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also Parker v. Principi, 15 Vet. App. 407, 412 (2002); Juarez v. Principi, 16 Vet. App. 518, 521 (2002) (per curiam order) (citing Parker as holding VCAA inapplicable to an assertion that a RO decision contained CUE.)

Analysis: Clear and Unmistakable Error (CUE)

Briefly, the RO initially denied service connection claims for cardiovascular disease and blackout spells with dizziness and blurred vision in August 1979.  In a September 1979 rating decision, and after the receipt of additional "service records," the RO confirmed its previous denials of the claims.  More recently, in January 2011, the Veteran's attorney asserted that the August 1979 rating decision contained CUE to the extent that it had failed to address specific, in-service findings pertaining to blackouts and cardiovascular symptoms, and did not consider a substantial portion of the Veteran's service treatment records (STRs). See also Board Hearing Transcript, generally. 

A prior final regional office decision must be reversed or revised where evidence establishes CUE. See 38 U.S.C. § 5109A(a); 38 C.F.R. § 3.105(a)(2015).  There is 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 or the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be undebatable such that had it not been made, would have manifestly changed the outcome at the time that it was made; and (3) a determination that there was CUE must be made based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999)(expressly adopting "manifestly changed the outcome" language in Russell); Hines v. Principi, 18 Vet. App. 227, 235 (2004).

Further, CUE is a very specific and rare kind of error.  It must be an error of fact or law that when subsequently reviewed "compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).  "Whether it is reasonable to conclude that the outcome would have been different is not the standard that must be met for a motion alleging clear and unmistakable error to succeed.  The governing law requires that the error be 'undebatable' and that the commission of the alleged error must have 'manifestly changed the outcome' of the decision." King v. Shinseki 26 Vet. App. 433 (2014) citing Russell, 3 Vet. App. at 313.  There is a presumption of validity to otherwise final decisions.  Where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo, 6 Vet. App. at 44.  

Thus, as a threshold matter, a claimant must plead CUE with sufficient particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995).  Here, the Veteran's attorney pled CUE with specificity (essentially arguing that the RO failed to address positive evidence of record and STRs) and the Board finds that the pleading is adequate.  However, the Board finds that the August 1979 rating decision and September 1979 confirmed rating decision do not contain CUE for the following reasons.

Again, the Veteran's attorney asserts that certain STRs, particularly, those dated from July 1958 to August 1966, were not of record at the time of the August 1979 denial ("Without these records (spanning 8 years) it would have been impossible to render a decision on whether or not the claimed conditions were shown in service or the presumptive period"), and that the rating decision contains CUE because the RO did not address pertinent evidence and explain why it did not support the Veteran's claims. See Attorney Statement, January 2011 CUE Claim.  The Veteran's attorney believes that consideration of the STRs should have resulted in the grant of the Veteran's claim(s). See Hearing Transcript, generally.  Specifically, the STRs dated in May 1953 document that the Veteran became dizzy and fainted; he was assessed with bradycardia syncope which was felt to represent Stoke's Adams syndrome.  The Veteran's attorney avers that the claimed cardiovascular and blackout spell conditions stem from "the same chronic heart condition that began in-service." See January 2011 CUE Claim.  

As an initial matter, at the time of the August 1979 rating decision, STRs from the Veteran's second period of service (i.e., Air Force STRs from July 1958 to August 1966) were of record and were specifically considered in the narrative portion of the rating decision.  For example, the rating decision expressly referred to STRs dated in 1963 and 1966, to include the March 1966 Retirement examination, which, incidentally, did not note any abnormalities of the heart, head, eyes, or any other body system relevant to the claim(s).  Accordingly, to the extent that the Veteran's attorney has argued CUE on the basis that the RO did not consider STRs from July 1958 to August 1966, this claim is directly contradicted by the evidence referred to in the August 1979 rating decision. 

Although STRs from the Veteran's second period of active duty service were of record at the time of the August 1979 rating decision, it appears that STRs from his first period of service with the Army (i.e., from April 1946, to July 1958) were not.  Indeed, the August 1979 rating decision specifically noted that the RO had "no Army records at all" and that "consideration should be given to another request for development as indicated, for Army service medical records."  Subsequent development was undertaken to obtain such records; in a September 1979 "Deferred or Confirmed" rating decision, the RO apparently reviewed "additional service records" but determined that there was "no evidence to warrant change in prior rating."  

In the August 1979 rating decision (which, in pertinent part, denied service connection for disorders claimed as blackout spells, an apparent claim for blurred vision, and heart ailment with high blood), the RO referred to post-service medical findings from November 1978 which indicated that the Veteran had a diagnosis of atherosclerotic cardiovascular disease, various intermittent left body or visual symptomatology (referable to blackout spells), and complaints of dizziness and blurry vision.  No specific eye condition was diagnosed; however, an EKG showed sinus bradycardia.  On January 1979 VA examination, the Veteran's ECG was within normal limits.  The RO went on to explain that "congestive heart failure also diagnosed atherosclerotic cardiovascular disease was not shown in service or the presumptive period," and that "blackout spells with complaints of dizziness and blurred vision were not shown in service."  

The Court held in Bouton that an RO's denial of the existence of evidence in the claims file was sufficient to satisfy the first and second CUE requirements (i.e., either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, and an error occurred based on the record). See Bouton v. Peake, 23 Vet. App. 70 (2008).  

The facts in Bouton demonstrated that at the time of the RO decision, the claims file contained five medical records evidencing depression secondary to the Veteran's service-connected back disorder.  Yet, in denying the Veteran's claim for service connection for an acquired psychiatric disorder, the RO stated that "[t]here is no record of psychiatric disability to include post-traumatic stress disorder showing a chronic disability subject to service connection." Bouton, slip. op. at 3.  The RO's failure to address the five medical records was deemed by the Court as a "clear" denial of the existence of such evidence in the claims file. Id. 

The Board finds the above facts to be similar to those in Bouton.  In this regard, the RO clearly concluded that a cardiovascular condition and blackout spells with dizziness and blurry vision were "not shown in-service," while a simple review of the STRs dated in 1952 and 1953 reveal treatment and diagnoses referable to bradycardia, dizziness, blurry vision, Stoke's Adams syndrome, and a functional aortic systolic murmur (see April 1952 Report of Medical History).  

As such, it is reasonable to conclude that the RO erred in its August 1979/September 1979 rating decision in denying the existence of evidence which demonstrated a cardiovascular condition and/or a condition manifested by blackout spells, dizziness, and blurry vision in-service.  Such error, however, cannot constitute CUE unless it is the type of error that would have manifestly changed the outcome of the RO's decision. See King, supra.  This may be shown where all evidence at the time of the decision "militated in support of the claim." Id. at 4 (quoting Crippen v. Brown, 9 Vet. App. 412, 422 (1996)).

In Bouton, the Court held that CUE was shown as there was no evidence before the RO that could have supported a denial of the service-connection claim on the merits.  More specifically, none of the remaining evidence of record considered whether there was a connection between depression and the Veteran's service-connected back disorder.  Thus, it did not constitute negative evidence as to the question of whether the Veteran had depression secondary to a service-connected disability. Id.   

While the Board finds that the facts of the present appeal are similar to Bouton with respect to whether the RO erred in adjudicating the claim, it finds that the current claim can be distinguished from Bouton as to the issue of whether such error constitutes CUE.

Specifically, although the STRs showed treatment and diagnoses referable to various heart conditions/symptoms and dizzy spells/blurry vision in 1952 and 1953, the Veteran's March 1966 separation/retirement examination revealed a normal clinical evaluation of the heart, head, eyes, and vascular system.  The post-service notation of atherosclerotic heart disease and isolated bradycardia was not shown until 1978, which was many years after separation from service, and the January 1979 VA examination found no evidence of any heart, head, eye, or vascular system condition.  In fact, heart rate, rhythm, and force were normal; the ECG was within normal limits; and blood pressure was 120/80.  The record also lacked any competent medical opinion linking any then-current cardiovascular disorder and/or disorder manifested by dizziness/blurry vision to active duty service.  

Based on the above, it cannot be said that all evidence at the time of the August or September 1979 RO decisions "militated in support of the claim" or, in other words, that the evidence of record compels the conclusion to which reasonable minds could not differ that the August or September 1979 rating result would have been manifestly different had the existence of the Veteran's in-service treatment for a cardiovascular symptoms, to include blackout spells, dizziness, and blurry vision, not been denied.  Accordingly, for the reasons discussed herein, the Board concludes that CUE is not established on any basis and the Veteran's appeal must be denied.


ORDER

The August 1979 rating decision that denied the Veteran's claim of entitlement to service connection for cardiovascular disease, to include congestive heart failure was not clearly and unmistakably erroneous, and the appeal of this issue is denied.

The August 1979 rating decision that denied the Veteran's claim of entitlement to service connection for blackout spells with dizziness and blurred vision was not clearly and unmistakably erroneous, and the appeal of this issue is denied.


REMAND

Regarding the remaining claims on appeal, although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).

The Veteran seeks a higher initial rating for PTSD.  At the time of his 2016 Board hearing, the Veteran testified that he receives ongoing VA and/or private psychiatric treatment and that he was recently seen by a VA (or a VA contracted) psychiatrist, Dr. B., approximately 2 to 3 weeks prior.  Those records, and any and all private and/or VA psychiatric treatment records dated from January 2010 to the present, should be obtained (to the extent available) upon remand. 

Further, the Veteran essentially testified that his PTSD symptoms have worsened over the course of the last several years.  He was last afforded a VA PTSD examination in 2014.  Accordingly, to ensure that the record includes sufficient medical evidence to properly evaluate the disability under consideration, the Board finds that a more contemporaneous examination is needed. See 38 C.F.R. § 5103A ; 38 C.F.R. § 3.159; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination).

Finally, the Veteran testified during his 2016 Board hearing that he was unable to work due to his PTSD; evidence contained in the electronic claims file confirms that he is currently unemployed and last worked in approximately 1978.  Based on the Veteran's assertions, the Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased rating claim, pursuant to Rice. 

The Veteran does not currently meet the schedular criteria for assignment of a TDIU.  However, adjudication of the claim for an increased rating for PTSD being remanded herein may affect whether the schedular criteria are met.  If after development and readjudication of the claim currently on appeal, the Veteran does not meet the schedular criteria for assignment of a TDIU, the AMC/RO should refer the claim for TDIU to the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001).


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain records of VA psychiatric treatment dated from January 2010 to the present, to include those from VA/VA-contracted psychiatrist, Dr. B.  (See Board Hearing Transcript page 10.) 

2. Appropriate action should be taken, including contacting the Veteran and obtaining any necessary authorization, to obtain records of private psychiatric treatment (if any) dated from January 2010 to the present.  If the Veteran responds, all reasonable attempts should be made to obtain such records.  If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession.

3. Following completion of the above, schedule an appropriate VA examination to determine the current severity of the Veteran's service-connected PTSD.  The file must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran's documented mental health history and lay statements. 

The examiner is requested to delineate all symptomatology associated with, and the current severity of, the PTSD.  The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible.

4. Thereafter, if and only if, the Veteran does not meet the schedular criteria for the assignment of a TDIU under 38 C.F.R. § 4.16(a), refer the claim of entitlement to a TDIU to VA's Director of Compensation Service for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b).

5. Then, adjudicate the issues on appeal.  If the benefits sought on appeal are not granted, the Veteran and his attorney should be provided with an appropriate Supplemental Statement of the Case, given an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. 


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs