Citation Nr: 1751872 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-06 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for coronary artery disease, status post stents associated with herbicide exposure. 2. Entitlement to an effective date earlier than January 11, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD), with consideration of whether there was a clear and unmistakable error (CUE) in the December 1987 denial of this claim for service connection. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to October 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 and December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is of record. FINDINGS OF FACT 1. In August 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran at the Veteran's Board hearing that he wished to withdraw the issue on appeal pertaining to entitlement to an initial disability rating in excess of 10 percent for coronary artery disease, status post stents associated with herbicide exposure. 2. In December 1987, the RO denied entitlement to service connection for PTSD in a rating decision. The Veteran did not submit a notice of disagreement, so as a consequence, that decision has become final based on the evidence then of record. 3. The prior December 1987 rating decision that considered the claim for service connection for PTSD did not involve CUE; it was supported by evidence then of record and was consistent with the law and regulations then in effect. There is no showing that the correct facts known at the time were not before the adjudicator, that the law then in effect at that time was incorrectly applied, and that the result would have been manifestly different to the extent any error did exist. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an initial rating in excess of 10 percent for coronary artery disease, status post stents associated with herbicide exposure. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The December 1987 rating decision denying entitlement to service connection for PTSD did not contain CUE; the criteria for entitlement to an earlier effective date on the basis of CUE are not met. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the CUE claim, the duties to notify and assist have no application to allegations of CUE as a matter of law, regardless of whether the Board or RO issued the earlier decision in question. Livesay v. Principi, 15 Vet. App. 165 (2001); Parker v. Principi, 15 Vet. App. 407 (2002); 38 U.S.C. §§ 5109A (a), 7111(a) (2012); 38 C.F.R. §§ 20.1400-20.1411 (2017). The statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim where the law, and not the underlying facts or development of the facts, is dispositive in a matter. Manning v. Principi, 16 Vet. App. 534 (2002). II. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran indicated at his August 2017 Board hearing that he wished to withdraw the appeal for entitlement to an initial rating in excess of 10 percent for coronary artery disease, status post stents associated with herbicide exposure. This verbal withdrawal came after the RO denied entitlement to an initial rating in excess of 10 percent for coronary artery disease, status post stents associated with herbicide exposure; hence, with respect to that issue, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and the appeal for entitlement to an initial rating in excess of 10 percent for coronary artery disease, status post stents associated with herbicide exposure is dismissed. III. Clear and Unmistakable Evidence The Veteran contends that there is CUE in a December 1987 rating decision that denied entitlement to service connection for PTSD. In regard to CUE in the December 1987 rating decision, under 38 C.F.R. § 3.105 (a), previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes CUE, the prior decision will be reversed or amended. A decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C. § 7105. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25 (1997); Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Further, 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 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. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40 (1993). 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 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. 40. There is a three-pronged test to determine whether clear and unmistakable error is present in a prior determination. First, either the correct facts, as they were known at the time, were not before the adjudicator, which requires 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. Second, 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. Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. 242; Russell, 3 Vet. App. 310. The evidence that was of record at the time of the 1987 decision included the Veteran's DD 214 which reflects that his military occupational specialty was aircraft mechanical repair. His awards included the Vietnam Service Medal, the Aircraft Crewman Medal, the Army Commendation Medal, and the Vietnam Campaign Medal. His service medical records were negative for psychiatric symptoms. He reported stressors in a written document dated in November 1987 including being ordered to go on a detail which involved picking up bodies after a battle (orders which he conceded were cancelled), being shot at by another serviceman, and being only a mile from a DMZ when someone yelled "incoming." He also recounted a post-service stressor involving the death of his son who he accidentally shot. A VA treatment record dated in March 1987 which noted that he had been handling Vietnam fairly well until the incident in which his son died due to the accidental shooting. Another VA treatment record also dated in March 1987 noted a diagnosis of PTSD. Overall, the Veteran essentially argues that the RO erred in failing to grant service connection for PTSD at the time of the December 1987 rating decision as he was found to have PTSD in March 1987. In the December 1987 rating decision, the RO found that the Veteran did not have PTSD. The RO reported that the service treatment records, claimed inservice stressors, and Veteran's lay statements were considered, along with the VA treatment records. The Veteran failed to submit a notice of disagreement and therefore, the December 1987 rating became final. As a threshold matter, the Board finds the arguments advanced by the Veteran to allege CUE in the December 1987 denial of service connection for PTSD have been conveyed with the requisite specificity, and will therefore adjudicate the merits of the claim. Simmons v. Principi, 17 Vet. App. 104 (2003); 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). Initially, the Board notes that the December 1987 RO denial does not discuss the relevant regulations. However, as noted above, in order for CUE to be granted, an error must have occurred which is undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. The Board does not find any evidence or indication that such an error occurred. The Board acknowledges that the December 1987 denial is vague as to the laws used to establish this denial. However, the Board finds there is simply no evidence of record indicating that the relevant facts or appropriate regulations were not considered in rendering this decision. Rating decisions are not required to set forth in detail the factual bases for their decisions before the 1990 effective date of 38 U.S.C.A. § 5104(b). In the absence of evidence to the contrary, the rating board is presumed to have made the requisite findings. Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005). Upon review of the evidence of record and the law in effect in December 1987, the Board finds no clear and unmistakable error in the December 1987 RO decision. 38 C.F.R. § 3.105 (a) (2017). At the time of the December 1987 rating decision, the evidence considered included the Veteran's service records showing service in Vietnam, and lay statements regarding the death of the Veteran's son, and his mental health status. Also reviewed in the rating decision was a March 1987 note indicating that the Veteran had PTSD. The only medical evidence showed that the Veteran had PTSD; however, there was evidence of significant post-service stressors. Specifically, the rating decision suggests that the RO found that the Veteran's PTSD symptomatology was not caused by the claimed in-service stressors but rather family problems of separation, problems in coping with his son's accidental death, fights with the Veteran's own parents regarding a cocaine addicted brother, and problems with the Veteran's hiatal hernia. This analysis was appropriate considering the laws at that time. 38 C.F.R. § 3.304 (f) (effective prior to March 7, 1997); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In this case, the denial of service connection was arguably supported by the evidence and the law in effect at that time. The evidence does not show the existence of undebatable error of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. It is not clear and unmistakable that there was PTSD that should have been service-connected at that time given the evidence that his symptoms were associated with post-service stressors. The findings of the RO were a plausible interpretation of the evidence then of record and a proper application of the extant laws and regulations. Therefore, the Board finds that the decision did not contain CUE. The Board notes that the Veteran has submitted his opinion in his January 2014 VA 9 Form, stating that the RO erred because the opinion and facts used to grant service connection in the August 2010 rating decision were the same opinion and facts used to deny service connection in the December 1987 rating decision. However, the Board notes that regardless of the Veteran's opinion, the laws and regulations surrounding granting service connection for PTSD were different during the December 1987 rating decision. Therefore, the Board finds that this opinion has no relevance to the claim for CUE as the updated PTSD service connection laws and regulations were not in place at the time of the December 1987 rating decision. In light of the above discussion, the Board finds that the Veteran has not pointed to any error of fact or law in the December 1987 determination which is such that it would compel the conclusion that the result would have been manifestly different but for the error. Although the Veteran may disagree with the RO's findings in the December 1987 denial and the weight it gave to the evidence of record, the Court has determined that an assertion that the RO improperly weighed or evaluated evidence can never rise to the level of CUE. Fugo, 6 Vet. App. at 43. Thus, the Board concludes that the record does not establish that, but for an error in the December 1987 denial, service connection would have been granted for PTSD. As such, the criteria for a finding of CUE in the December 1987 rating decision have not been met. Therefore, the Board finds that the criteria for an earlier effective date for the grant of service connection PTSD on the basis of CUE in the December 1987 rating decision that denied service connection for PTSD have not been met. ORDER 1. Entitlement to an initial rating in excess of 10 percent for coronary artery disease, status post stents associated with herbicide exposure is dismissed. 2. As there was no CUE in the December 1987 rating decision that denied entitlement to service connection for PTSD, the appeal is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs