Citation Nr: 1746735 Decision Date: 10/19/17 Archive Date: 10/31/17 DOCKET NO. 14-00 299A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether there was clear and unmistakable error (CUE) in the January 10, 1989 decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The moving party had active service in the U.S. Navy from February 1977 to April 1978. This matter arises as an exercise of the Board's original jurisdiction under 38 U.S.C.A. § 7111 (West 2016) pursuant to the motion by the moving party alleging CUE in the January 10, 1989 Board decision. FINDINGS OF FACT 1. In a decision dated January 10, 1989, the Board denied the claim of entitlement to service connection for an acquired psychiatric disorder on the basis an acquired psychiatric disorder was neither incurred in or aggravated by peacetime service nor may schizophrenia be presumed to have been incurred therein. 2. The Board's January 1989 decision was not based on CUE. CONCLUSION OF LAW The requirements for revision of the Board's January 1989 decision on the grounds of CUE have not been met. 38 U.S.C.A. § 7111 (West 2014); 38 C.F.R. §§ 20.1400, 20.1401, 20.1403, 20.1404 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). Under 38 U.S.C.A. § 7111, the Board has been granted the authority to revise a prior decision of the Board on the grounds of CUE. A claim requesting review under this statute may be filed at any time after the underlying decision is made. Pursuant to an opinion of the VA General Counsel, VAOPGCPREC 1-98, VAOPGCPREC 1-98, 63 Fed. Reg. 31263 (1998), the Board's authority applies to any claim pending on or filed after the date of enactment of the statute, November 21, 1997. See 38 C.F.R. § 20.1400. The moving party's motion for review or revision was filed with the Board in January 2014. The statute and implementing regulations provide that a decision by the Board is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. A request for revision of a Board decision based on CUE may be instituted by the Board on its own motion or upon request of the claimant. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. Before addressing the merits of the Veteran's CUE claim, the Board must determine whether the motion alleging CUE meets specific pleading requirements. See 38 C.F.R. §§ 20.1400-1411. A motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party, if other than the veteran; the applicable Department of Veterans Affairs file number; and, the date of the Board decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. 38 C.F.R. § 20.1404(a). Pursuant to 38 C.F.R. § 20.1404(b), a motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions that fail to comply with the requirements set forth in this paragraph shall be denied. Id. In this case, the moving party has minimally met the requirements of 38 C.F.R. § 20.1404(a) and 38 C.F.R. § 20.1404(b). Here, the moving party contends that the January 10, 1989 Board decision was clearly and unmistakably erroneous because the Board failed to consider and correctly apply the provisions of 38 U.S.C. § 1112(a)(1) by failing to recognize a diagnosis of a psychosis manifested to a degree of 10 percent or more within one year of discharge, which warranted an award of service connection on a presumptive basis. Rule 1403, found at 38 C.F.R. § 20.1403, relates what does and what does not constitute CUE, and provides as follows: (a) General. Clear and unmistakable error 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. (b) Record to be reviewed. (1) Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by VA not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. (d) Examples of situations that are not clear and unmistakable error. (1) Changed diagnosis. A new medical diagnosis that "corrects' an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. Prior decisions issued by the United States Court of Appeals for Veterans Claims (Court) with regard to CUE in RO rating decisions provide guidance in determining whether clear and unmistakable error exists in a Board decision. As stated by the Court, in order for CUE to exist: (1) "[e]ither the correct facts, as they were known at that 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 the time were incorrectly applied," (2) the error must be "undebatable" and 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 clear and unmistakable error 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)). The applicable criteria governing service connection claims in effect at the time of the Board's 1989 decision essentially has remained unchanged and some provisions merely have been renumbered. Pertinent to the CUE allegation raised, if the disorder was a psychosis, service connection was granted on a presumptive basis if manifest to a compensable degree within one year of separation from service. 38 U.S.C. § 38 U.S.C. § 301, 312, 313, 337 (now 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002)); 38 C.F.R. §§ 3.307, 3.309 (1989). The motion for CUE states that the Veteran was discharged in April 1978 and that he was hospitalized from April 24,1978 to June 5,1978 for in-patient treatment of schizophrenia, paranoid type and that these facts warranted service connection on a presumptive basis. The Board notes that the April 1978 diagnosis of schizophrenia, paranoid type was considered in the January 10, 1989 Board decision and that the Board cited to the laws and regulations pertaining to presumptive conditions such as schizophrenia. However, the Board reviewed this in-patient admission in the context of a subsequent admission approximately two weeks later which diagnosed drug abuse and anti-social behavior followed by subsequent admissions involving evaluations by nursing staff, psychiatric evaluation and psychological testing procedures which diagnosed explosive personality as well as a personality disturbance designated as drug addiction. Based on the totality of the evidence, the Board evaluated the evidence as follows: While there is evidence of some unusual behavior displayed by the veteran during service, a combination of manifestations sufficient to support a diagnosis of an acquired psychiatric disorder was not clinically apparent during that time frame. Moreoever, although there is reference to a diagnosis of schizophrenia rendered during an admission to a private facility in April 1978, on subsequent transfer to a Veterans Administration facility a diagnosis to this effect was not substantiated, and it was not, in fact, until early 1987 that any emotional difficulties previously experienced by the veteran could reasonably be perceived as having achieved the proportions of an acquired psychiatric disorder." In pointing out that we have carefully reviewed the effectively presented testimony developed during the recent personal hearing, as well as the statement by the school official, and have found this material well-meaning and informative in terms of its contents and observations, there yet remains a distinct absence of information sufficiently supportive of the requisited diagnosis within a period sufficiently proximate to service as to warrant an allowance of this appeal." Overall, the Board's decision clearly considered the April 1978 diagnosis of schizophrenia but did so in the context of several contemporaneous admissions which arrived at a different diagnosis for the Veteran's symptoms based upon evaluations by nursing staff, psychiatric evaluation and psychological testing procedures. The Board also considered the remoteness of the diagnosis of psychosis 9 years after service in terms of a combination of manifestations sufficient to establish an earlier onset under 38 C.F.R. § 3.303(b). Thus, the evidence was not undebatable that the Veteran in fact manifested a psychosis within one year of service discharge. In the opinion of the Board, the assertions of CUE amount to no more than a disagreement as to how the facts were weighed. A disagreement as to the weight that should have been afforded the evidence does not rise to the level of CUE. See Damrel, 6 Vet. App. at 246. Accordingly, the Board concludes that the criteria for revision or reversal of the Board's January 1989 decision on the basis of CUE are not met. With regard to CUE motions, the Board notes that the benefit-of-the-doubt doctrine is inapplicable. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell v. Principi, 3 Vet. App. 310 (1992) ) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involve more than a disagreement as to how the facts were weighed or evaluated). ORDER The motion for reversal of the January 10, 1989 decision of the Board of Veterans' Appeals that denied entitlement to service connection for an acquired psychiatric disorder on the grounds of CUE is denied. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs