Citation Nr: 1644267	
Decision Date: 11/22/16    Archive Date: 12/01/16

DOCKET NO.  13-02 426	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an effective date prior to July 14, 2009, for the award of service connection for paranoid schizophrenia.

2.  Whether a March 14, 1983 rating decision contained a clear and unmistakable error (CUE) in denying service connection for paranoid schizophrenia (such that an effective date earlier than July 14, 2009 for a later grant of service connection for paranoid schizophrenia may be warranted).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The Veteran had active duty service from February 1976 to March 1982.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The August 2010 rating decision granted service connection for paranoid schizophrenia, effective July 14, 2009.  In June 2015, a Board central office hearing was held before the undersigned; a transcript of the hearing is associated with the record.  This case was previously before the Board in September 2015, when the Board issued a decision resolving a number of other issues on appeal and identified that the Veteran's claim of entitlement to an earlier effective date for the award of service connection for paranoid schizophrenia was now accompanied by an unadjudicated claim that a March 1983 RO rating decision should be revised on the basis of CUE (such that service connection for paranoid schizophrenia would have been awarded from the date of the Veteran's original claim).  The Board referred the CUE claim to the RO and deferred adjudication of the intertwined effective date issue on appeal.

The Board notes that the RO / Agency of Original Jurisdiction (AOJ) did not issue a new rating decision on the CUE issue, but rather issued a February 2016 supplemental statement of the case (SSOC) incorporating the CUE issue as part of the matter currently in appellate status.  The Board recognizes that the CUE and effective date issues may properly be considered distinct, but the AOJ has led the Veteran to believe that the CUE issue is in appellate status before the Board and the Board finds it is reasonable in this case to consider the matter as part of this appeal.  The Veteran has presented the CUE claim as part of a theory/route to obtaining the earlier effective date sought in the effective date claim already in appellate status.  The Board finds that it is reasonable to proceed with consideration of the Veteran's contentions without further remand of this matter to require the issuance of a separate rating decision on the CUE issue and requiring the Veteran to separately perfect an appeal of that matter.  The Board observes that there is no prejudice to the Veteran in this determination, as resolution of the CUE claim in this Board decision results in a complete grant of the benefit sought on appeal with the assignment of an effective date of the day following the Veteran's separation from active duty service.

The Veteran had also appealed a December 2011 rating decision that implemented a proposed reduction from 10 percent to noncompensable in the disability rating assigned for his service-connected right knee osteoarthritis, but a November 2012 rating decision that accompanied a statement of the case (SOC) restored the rating, and that issue is no longer on appeal.  The Board is aware that the RO issued a December 2013 supplemental SOC (SSOC) addressing the issue of entitlement to an increased rating for the right knee osteoarthritis, but that issue was not on appeal because the December 2011 rating decision did not address the issue of entitlement to a rating in excess of 10 percent for the right knee disability and the Veteran did not argue he was entitled to an increased rating in his January 2012 notice of disagreement.  The issuance of an SSOC addressing the issue was therefore erroneous, and the Board cannot take jurisdiction of the matter.  See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (holding that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and does not also contemplate a claim for an increased rating).  Notably, and as discussed in the Board's prior September 2015 decision in this case, it does not appear the Veteran believed the matter was on appeal because he did not raise the issue at the June 2015 Board hearing even after the undersigned listed the issues before the Board.  As noted in the Board's September 2015 decision, the Veteran filed a claim for an increased rating for his right knee disability in January 2013, but the matter has not been initially adjudicated by the Agency of Original Jurisdiction (AOJ), partly because it was erroneously considered to be on appeal.  The claim of entitlement to an increased rating for the right knee disability is therefore referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 CFR Parts 3, 19, and 20 (2015)).

FINDINGS OF FACT

1.  A March 1983 RO rating decision denied service connection for paranoid schizophrenia, finding that the Veteran's paranoid schizophrenia had its initial onset during a period of prolonged unauthorized absence (and not in the line of duty during active duty service).

2.  The March 1983 RO rating decision contained CUE in failing to recognize that the findings of a December 1981 report of a service department Medical Evaluation Board were binding upon VA to the extent of finding that the Veteran's schizophrenia had initial onset during active service in the line of duty, prior to his unauthorized absence.

3.  The Veteran's initial claim of entitlement to service connection for paranoid schizophrenia was received by VA on February 22, 1982 on a VA Form 21-526e, Veteran's Application for Compensation or Pension at Separation from Service; the Veteran separated from service on March 24, 1982.


CONCLUSION OF LAW

The March 1983 RO rating decision contained CUE in failing to grant service connection for paranoid schizophrenia, accordingly, March 25, 1982 (the day following separation from service), is the proper effective date for the award of service connection for paranoid schizophrenia.  38 U.S.C. § 3010 (1982), 38 U.S.C.A. §§ 101(16), 105(a) (West 1982), 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1(k), 3.1(m), 3.301(a), 3.400(b)(2) (1982); 38 C.F.R. §§ 3.105(a), 3.400(b)(2) (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The essential uncontested facts in this case include that the Veteran served in the Marine Corps from February 1976 to March 1982, and that the Veteran was given a general discharge due to medical disability in March 1982 following a prolonged period of unauthorized absence (of approximately 18 months).  During the period of unauthorized absence, the Veteran was hospitalized multiple times and diagnosed with paranoid schizophrenia including psychotic features.  A key focus of the Board's analysis in this case involves the question of whether the Veteran's schizophrenia had its first onset in the line of duty during active duty service prior to his leaving on an unauthorized absence.  The Board finds that it was CUE for the March 1983 RO rating decision to find that the Veteran's schizophrenia did not have its initial onset in the line of duty during active duty service.

The March 1983 RO rating decision denied the Veteran's claim of entitlement to service connection for schizophrenia.  The March 1983 RO rating decision discussed that the Veteran's in-service February 1982 "Physical Evaluation Board - Proceedings and Findings" report diagnosed the Veteran with "schizophrenia, paranoid type" and "determined that this condition was not ratable, it was incurred during a period of prolonged unauthorized absence," and that the "disposition was a medical discharge and no disability benefits."  The March 1983 RO rating decision also discussed that "[u]nder the history portion of report given by the veteran was that the illness was not believed to have existed prior to entry into service, but to have come about during a period of active duty and to have led to the veteran's unauthorized absence.  In light of this, legal charges were dropped and he was transferred to the psychiatric service for further evaluation, treatment, and disposition."  The March 1983 RO rating decision then discusses that the Veteran "was very vague in his description of what had gone on in his final months of active duty before going on unauthorized absence, but stated that something peculiar was happening.  He stated that he had gone home, the events at home were not clear to him and his family brought him to [a psychiatric institute]."  The March 1983 RO rating decision goes on to describe further events and documented psychiatric hospitalizations and treatment during the Veteran's absence from service.  The March 1983 RO rating decision proceeds to adopt the finding of the Physical Evaluation Board in finding that the Veteran's "mental condition was incurred during a period of prolonged unauthorized absence and was not incurred or aggravated while entitled to receive basic pay."  Notably, and as discussed in greater detail below, the March 1983 RO rating decision does not substantially discuss the significance of a related, but distinct, December 1981 Medical Evaluation Board report that concludes that the Veteran's schizophrenia did have onset during active duty service prior to his period of unauthorized absence (in the line of duty).

In April 2010, the RO issued a rating decision formally concluding that the Veteran was insane at the time of his unauthorized absence during military service.  In August 2010, the RO issued a rating decision that awarded service connection for paranoid schizophrenia following the Veteran's July 14, 2009 petition to reopen the claim; an effective date of July 14, 2009 was assigned for the award of service connection.  The matter currently on appeal features the Veteran's contention that the original March 1983 denial of service connection for schizophrenia should be revised on the basis of CUE such that service connection for schizophrenia would be awarded with an earlier effective date corresponding to the Veteran's original claim for that benefit.

An unappealed rating decision is final, and may not be revised based on the evidence of record at the time of the decision unless it is shown that the decision involved CUE.  38 U.S.C.A. § 7105.  Where CUE is found in a prior RO decision, the prior decision will be reversed or revised.  For the purpose of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision.  38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a) (2015).  CUE is a very specific and rare kind of error; it is the kind of error, of fact or 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.  To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication.  Allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.  See 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a) (2015); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993).

As a threshold matter, the Board finds the arguments advanced by the Veteran and appellant to allege CUE have been conveyed with the requisite specificity; the Board will therefore adjudicate the merits of the claim.  See Simmons v. Principi, 17 Vet. App. 104, 114-115 (2003); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing the denial of a CUE claim, due to a pleading deficiency, and the denial of a CUE on the merits).  During the Veteran's June 2015 Board hearing, the Veteran's representative specifically identified the March 1983 RO rating decision and argued that the decision committed CUE in that it "misrepresented that he was ... AWOL ... [whereas] they did dismiss those charges against him."  The September 2016 written brief from the Veteran's representative further cites 38 C.F.R. § 3.12(c)(6) and argues that "[t]he evidence of record establishes a valid legal defense for the prolonged unauthorized absence as the Marine Corp[s] dropped charges and referred the Claimant for psychiatric evaluation, treatment and disposition."  The Veteran's representative further cites that the record "further establishes treatment for psychiatric conditions during the prolonged unauthorized absence," and argues that "the valid legal defense which caused the charges to be dropped and psychiatric treatment during the prolonged absence clearly and unmistakably establish insanity at the time of AWOL."  The representative's argument concludes: "Therefore, the rating decision of March 1983 clearly and unmistakably determined the psychiatric condition arose in a time of prolonged absence without ever specifically addressing the issue of the insanity and valid legal defense."

The Board notes that the focus of 38 C.F.R. § 3.12(c)(6), both at the time of the March 1983 decision and currently, is a determination of whether a Veteran may be ineligible for benefits on the basis of a discharge under other than honorable conditions issued as a result of a prolonged unauthorized absence.  See  38 C.F.R. § 3.12(c)(6) (1982), 38 C.F.R. § 3.12(c)(6) (2015).  However, although the Veteran had a prolonged unauthorized absence, the Veteran was not discharged under other than honorable conditions; the Veteran's service records show that he was issued a general discharge for the reason of medical disability.  There has otherwise been no disciplinary action, investigations or processing for an administrative discharge pending following the issuance of the March 1982 general discharge.  The character of the Veteran's discharge was not a bar against his eligibility for disability benefits.  Further discussion of these specific provisions is not necessary at this time.

The basis of the March 1983 RO rating decision's denial of service connection for schizophrenia was essentially a finding that the schizophrenia was not incurred in the line of duty during the Veteran's active duty service.  The Board finds that the argument presented by the Veteran's representative (focusing upon indications that the service-department had determined that the Veteran's schizophrenia had its onset during service prior to the unauthorized absence) sufficiently directs the Board's attention to an identifiable CUE in the March 1983 RO rating decision; this CUE is explained below.

The applicable laws and regulations at the time of the March 1983 RO rating decision, as now, require that in order for a Veteran to be entitled to disability compensation, the injury or disease from which the Veteran's disability results must have been incurred in or aggravated by active military, naval, or air service "in line of duty."  38 U.S.C.A. §§ 101(16), 105(a) (West 1982); 38 C.F.R. §§ 3.1(k), 3.1(m), 3.301(a) (1982).  An injury will be deemed to have been incurred "in line of duty" when the injury was suffered during a period of active military, naval, or air service, unless an exception applies.  38 U.S.C.A. § 105(a) (West 1982); 38 C.F.R. §§ 3.1(m), 3.301(a) (1982).  The requirement for line of duty will not be met if it appears that at the time the injury was suffered or disease contracted, the person on whose account benefits are claimed was avoiding duty by deserting the service, or by absenting himself or herself without leave materially interfering with the performance of military duties.  38 U.S.C.A. § 105(b) (West 1982); 38 C.F.R. § 3.1(m) (1982).

The applicable laws and regulations at the time of the 1983 decision, consistent with current laws and regulations, provided that a service department finding that an injury occurred in the line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA.  38 C.F.R. § 3.1(m) (1982).  However, VA was (and currently remains) not bound by a negative line of duty determination by the service department.  (The Board also observes that a December 1982 deferred rating decision memorandum notes that the Veterans Benefits Administration Adjudication Procedures Manual at the time directed that the RO was responsible for making its own line of duty determination following the service department's Physical Evaluation Board's negative finding.  It is worth noting, in passing, that the current version of the Veterans Benefits Administration Adjudication Procedures Manual Rewrite (M21-1) still requires "a formal favorable or unfavorable VA determination, as to the line of duty, if the service department...holds the disability or death to be not in the line of duty."  M21-1, pt. III, subpt. V, ch. 1, § D.6.d.).  Only a positive line of duty incurrence determination from the service department is binding upon VA.

Of great significance, the Board finds that the evidence of record at the time of the March 1983 RO rating decision clearly and unmistakably featured two conflicting service department determinations addressing the matter of whether the Veteran's schizophrenia was incurred in the line of duty during active service.

The Veteran's service personnel records show that a Medical Evaluation Board process was completed in December 1981 and the report of this service department proceeding presents a finding that the Veteran's schizophrenia had its initial onset in the line of duty during active duty service.  The Medical Evaluation Board concluded that the schizophrenia "disability did not exist prior to entry into the service, and, therefore, it is considered to have been incurred during the period of active military duty."  The report explains the Medical Evaluation Board's findings in greater detail, particularly noting that the Medical Evaluation Board compiled a detailed factual history that the Medical Evaluation Board expressly "considered reliable," drawing from multiple sources including "the patient, the patient's medical record and service record."  (Notably, the Veteran's complete service personnel records appear to no longer be entirely available for re-review, but there is no suggestion that the Veteran's complete personnel records were not available to the Medical Evaluation Board during its preparation of the detailed history presented in its report.)  The Medical Evaluation Board found:

The patient came to the Psychiatry Service, Naval Regional Medical Center, Camp Lejeune, North Carolina, in transit from the Correctional Center, Camp Lejeune, where the patient had been confined awaiting court martial for an extended unauthorized absence.  The patient was noted to be disorganized in his thought process and when history came to light that the patient had spent some months of his time on unauthorized absence in civilian psychiatric hospitals, he was referred for a legal psychiatric evaluation....  A diagnosis of paranoid schizophrenia was made.  The illness was not believed to have existed prior to entry into the service, but to have come about during the period of active duty and to have led to the patient's unauthorized absence.  In light of this, legal charges were dropped....  [Emphasis added.]

The Board finds that reasonable minds cannot differ in finding that the December 1981 Medical Evaluation Board finding presents a service department finding that the onset of the Veteran's schizophrenia occurred in the line of duty during the Veteran's active duty service.  The service department's Medical Evaluation Board accepted the facts of the above-quoted section as "reliabl[y]" shown by the documentation and evidence at the time, documents that the service department had dropped unauthorized absence charges against the Veteran based upon the service department's finding (based upon a "legal psychiatric evaluation"  that was ordered by the service department) that the Veteran's schizophrenia had onset during active service prior to his unauthorized absence and that the disability indeed led to the Veteran's unauthorized absence.  The service department's Medical Evaluation Board report clearly adopts these findings and conclusions.

As the Board finds that it is clear and unmistakable that the December 1981 Medical Evaluation Board report presents a service department finding that the onset of the Veteran's schizophrenia occurred in the line of duty, this service department finding was binding upon VA unless it is patently inconsistent with the requirements of laws administered by VA.  38 C.F.R. § 3.1(m) (1982).  The Board finds that reasonable minds cannot differ in finding that the finding was not patently inconsistent with the requirements of laws administered by VA.  The Board has considered that pertinent statute and regulatory provisions dictated (at the time of the March 1983 decision, as now) that requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was absent without leave which materially interfered with the performance of military duty.  38 U.S.C.A. § 105(a) (West 1982); 38 C.F.R. § 3.1(m) (1982).  However, being bound by the December 1981 Medical Evaluation Board findings would not have required VA to find that a disability incurred during his unauthorized absence was incurred in the line of duty.  The service department findings presented in the December 1981 Medical Evaluation Board indicate that the Veteran's schizophrenia had its initial onset during active service prior to the Veteran's unauthorized absence; thus, being bound by this finding does not result in any position that is patently inconsistent with the requirements of laws administered by VA.

Accordingly, the Board finds that the undebatable facts and correct application of pertinent law in this case results in the conclusion that the March 1983 RO rating decision was bound by the service department's Medical Evaluation Board finding that the onset of the Veteran's schizophrenia occurred in the line of duty during his active duty service prior to his period of unauthorized absence.  The other, contrary, service department finding presented in the February 1982 Physical Evaluation Board report was not binding upon VA as it is not a finding indicating that the disability was incurred in the line of duty, and thus does not meet the criteria of 38 C.F.R. § 3.1(m) (1982) to be considered binding.  An undebatable logical consequence of having a binding determination in conflict with a non-binding determination is that the non-binding determination is to be disregarded in favor of the binding determination.  Thus, it was CUE for the March 1983 RO rating decision to reply upon the non-binding February 1982 Physical Evaluation Board finding and to disregard the binding contrary service department finding in the December 1981 Medical Evaluation Board report.

The Board finds that the error identified in this case is undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made.  The only basis for the March 1983 RO rating decision's denial of the benefit sought was the RO's finding that the Veteran's schizophrenia had its initial onset during a period of unauthorized absence from duty.  Had the March 1983 RO rating decision recognized the binding nature of the service department's determination that the Veteran's schizophrenia had its onset in the line of duty during active duty service prior to his unauthorized absence, it is undebatable that entitlement to service connection for schizophrenia was established at that time.

The Board finds, accordingly, that there was CUE in the March 1983 RO rating decision, and the appropriate effective date for the award of service connection for paranoid schizophrenia is March 25, 1982, the date following his separation from service.  (It is not possible for VA to grant entitlement to service connection with effect prior to the Veteran's separation from service, and the Veteran has not contended otherwise.)

The revision of the March 1983 rating decision to award service connection for schizophrenia effective from March 25, 1982 effectively resolves the Veteran's claim on appeal seeking such an effective date on other bases.  The Veteran's contentions, including as presented by his representative during the June 2015 Board hearing, express that he seeks assignment of an effective date in accordance with his original 1982 claim for service connection for schizophrenia.  Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.   38 U.S.C. § 3010 (1982), 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (1982), 38 C.F.R. § 3.400 (2015).  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.  Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 3010 (1982), 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (1982), 38 C.F.R. § 3.400 (2015).

The Veteran's earliest claim for service connection was the February 22, 1982 submission of a VA Form 21-526e "Application for Compensation or Pension at Separation from Service," prior to his March 24, 1982 separation.  In this case, the newly assigned effective date of March 25, 1982, the first date following the Veteran's separation from service, is the earliest possible effective date that may be contemplated and is a complete grant of the benefit sought by the Veteran in this case.


ORDER

The appeal to establish CUE in a March 1983 rating decision which denied service connection for schizophrenia is granted, and the March 1983 rating decision is revised to award service connection for schizophrenia.

Entitlement to an effective date of March 25, 1982 (the first date following separation from service) for the award of service connection for bilateral hearing loss is granted.



______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs