Citation Nr: 1804169 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 09-05 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date earlier than January 25, 1999, for the grant of service connection for anxiety and schizoaffective disorders, to include whether the July 1977 rating decision contained clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Theodore C. Javi, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In November 2006 and March 2008, the Veteran was afforded a hearing before a hearing officer at the RO. This case was previously before the Board for appellate consideration in December 2012 when the Board denied the Veteran's claim for effective date earlier than April 18, 2006, for the establishment of service connection for a psychiatric disorder, to include on the bases of CUE in the July 1977 and July 1999 rating decisions. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). A September 2013 Court order granted the parties' Joint Motion for Remand, vacated the Board's December 2012 decision, and remanded the claim to the Board for compliance with the terms of the joint motion. In May 2014, the Board awarded an effective date of January 25, 1999, for the establishment of service connection for a psychiatric disorder, and found no CUE in a July 1977 rating decision. In a December 2014 Order, which endorsed a November 2014 Joint Motion for Remand, the Court vacated the May 2014 Board decision, which in pertinent part, denied entitlement to an effective date prior to January 25, 1999 for award of service connection for a psychiatric disorder, to include on the basis of CUE in July 1977 rating decision, and remanded the matter for action complying with the Joint Motion for Remand. In March 2015, the Board issued a decision finding that the July 1977 decision did not contain CUE. The Veteran appealed that decision to the Court. In a November 2016 decision, the Court vacated the March 2015 Board decision and remanded the matter to the Board for readjudication. FINDINGS OF FACT 1. A July 1977 rating decision denying service connection for a nervous disorder contained legal error in the application of the law. 2. But for the legal error in the July 1977 rating decision, the outcome would have been manifestly different and service connection for a nervous disorder would have been granted. CONCLUSION OF LAW The July 1977 rating decision, which denied service connection for a nervous disorder, was clearly and unmistakably erroneous and is to be revised to grant service connection for an anxiety disorder. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. In determining whether a prior determination involves CUE, the United States Court of Appeals for Veterans Claims (Court) has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). CUE is a very specific and rare kind of "error." It is the kind of error in 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 manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). At the time of the July 1977 rating decision, the relevant evidence of record included the Veteran's service treatment records, VA examination reports, and lay statements of the Veteran and his mother. The Veteran's service treatment records show that in the report of medical history on enlistment in January 1973, the Veteran denied any psychiatric or mental health-related complaints and stated that he was in good health. The January 1973 report of medical examination indicates that the Veteran was psychiatrically normal on clinical evaluation. There were no disqualifying defects noted and the Veteran was found to be qualified for enlistment and induction. A "1" was assigned for the Veteran's PULHES rating for his psychiatric condition ("S"). During treatment for a cough in February 1973, the Veteran requested to see "MHCS" for problems. In March 1974, the Veteran was treated for complaints of malaise with no acute distress. In April 1973, he complained of having diarrhea for two days with 20 bowel movements since the day before treatment. He also complained of having bad nerves and requested tranquilizers. Diagnostic impression was diarrhea. The Veteran was referred to a medical doctor and Valium was prescribed. In May 1973, the Veteran complained of having diarrhea for about two months that occurred every other day and nervousness. He requested to see a psychiatrist. He was evaluated by a physician's assistant later that day at which time he reported two prior episodes of "nervous breakdowns" in civilian life and was treated by his family physician prior to entry into service. It was noted that he had difficulty since entry in military service in that he failed physical training in basic combat training and ever since had vague complaints of diarrhea associated with anxiety or stressful situations, which was uncontrolled with medication. It was noted that he had been "seen by MHC service on one occasion (no notes). Now states that he feels that he can't make it and wants out." Diagnostic impression was character and behavior disorder and the follow-up plan was for a mental health consultation. During treatment in July 1973, the Veteran complained of memory loss, fatigue and anorexia. In a September 1973 dental medical history questionnaire, the Veteran reported recently being under the care of a physician, and hospitalization in the past five years. He also reported that he was taking Valium for nerves. In October 1973, the Veteran stated that he had diarrhea due to nervousness and Kaopectate was not effective. He also complained of blackouts. Diagnostic impression was highly nervous. Diagnostic impression was problem of anxiety and adjustment and a psychiatric evaluation was recommended. A mental hygiene consultation was requested, which stated that psychiatric evaluation was recommended due to history of chronic anxiety problems needing frequent use of tranquilizers and what seemed to be a problem adjusting. A psychiatric consultation performed by a social work/psychology specialist indicated that the Veteran had been at Mental Hygiene Consultation Service on numerous occasions since October 1973. The Veteran had related problems of confusion and anxiety centered on the duties and various tasks given to him at his unit. His anxiety was manifested by confusion as to the duties he was to perform and trouble adjusting to his job situation. Prior to being returned to duty, he was counseled to help realize his situation and more clearly understand his obligations in the military. It was recommended that follow-up be coordinated between the mental hygiene clinic and the Veteran's company commander. In June 1974, the Veteran was treated for complaints of having personal problems. In the December 1974 Report of Medical History for discharge, the Veteran reported that his health was fair and endorsed past and/or present symptoms of recent weight gain or loss, frequent trouble sleeping, and depression or excessive worry. He denied any history of treatment for a mental condition and ever being rejected for or discharged from military service for mental health reasons. The report of medical examination showed that the Veteran was psychiatrically normal on clinical evaluation. His PULHES rating for psychiatric condition was "1." No mental health related defects or diagnoses were noted. The Veteran was found qualified for separation. The Veteran stated in a statement of medical condition on separation that the only change in his medical condition was a hearing defect. In a March 1977 VA Income-Net Worth and Employment Statement (VA Form 21-527), the Veteran reported that he became totally disabled on the date of his discharge from active service and indicated that he quit his last job as a mechanic in the Army on account of his ear and nervous conditions. The Veteran's mother reported in a statement dated March 1977 that after the Veteran's discharge from service he became extremely nervous and frustrated, particularly when attempting to secure employment. She believed it could have been a result of his hearing loss during service. The Veteran was afforded a VA psychiatric examination in connection with his claim for service connection for a nervous condition in June 1977. The examiner noted that the Veteran's service records were not available. The Veteran reported that he had experienced progressive feelings of nervousness and apprehension since his father died in 1968. He reported inservice treatment at the mental hygiene clinic. The VA examiner found that the exact nature of inservice treatment and the Veteran's discharge from service was a little obscure. The Veteran had remained unemployed since his discharge from service. The Veteran denied any particular depression or suicidal ideation and there was no history of hallucinations or delusions. He was oriented and cooperative, but rather verbose and apprehensive. He was of average intelligence consistent with his educational background. His abstracting ability was fair, his memory was good, and there was no evidence of looseness of association or depersonalization. He appeared competent from a legal standpoint. Diagnosis was anxiety neurosis. The Veteran filed a claim for service connection for a nervous condition in March 1977. On this record, in July 1977, the RO denied service connection for anxiety neurosis. The RO noted that the Veteran's service medical records showed that he was interviewed in the Mental Hygiene Clinic during service and that he reported two episodes of "nervous breakdowns" prior to entering service and was treated by his family physician. The RO stated that inservice diagnosis was a character/behavior disorder, which was not a disability under the law, and at the time of the Veteran's discharge he had no complaints nor was there shown any indication of any mental disorder. The RO noted findings contained in the report of the June 1977 VA psychiatric examination and concluded that there was no evidence to show that the Veteran's currently diagnosed anxiety neurosis was related to the condition diagnosed in service as a character and behavior disorder, and service connection was denied for anxiety. At the time of the July 1977 rating decision, applicable VA law provided that service connection is warranted when the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing such service, was aggravated therein. 38 C.F.R. § 3.303(a) (1977). Regarding pre-service disabilities noted in service, regulation provided that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional confirmatory evidence is necessary. 38 C.F.R. § 3.303(c) (1977). Consequently, with notation or discovery during service of such residual conditions with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they pre-existed service. Id. Similarly, manifestation of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish pre-service existence thereof. Id. In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing pre-service origin. Id. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. Id. The law regarding the presumption of soundness in effect in 1977 provided that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 311 (1977). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (1977). Determinations should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. Id. Upon review of the evidence of record and the law extant in July 1977, the Board finds that the July 1977 rating decision that denied service connection for a nervous disorder contains clear and unmistakable error. Specifically, the RO failed to consider whether the Veteran's nervous disorder pre-existed service and was aggravated by service. As noted above, the RO denied the Veteran's claim for a nervous disorder based on there being no evidence showing that the Veteran's currently diagnosed anxiety neurosis was related to the condition diagnosed in service. There is no indication that the RO considered whether the Veteran's disorder pre-existed service and whether the pre-existing disorder was aggravated therein. Service treatment records clearly demonstrate that the Veteran had a psychiatric condition prior to service as was reported in the May 1973 service treatment report as well as the post-service June 1977 VA psychiatric examination. Prior to February 1990, the RO was not required to provide a statement of reasons or bases for their decision, and the Federal Circuit has held that RO decisions prior to that date are presumptively valid, even in the absence of such discussion. See Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004) (holding that statements of reasons or bases in the ROs' decisions were not required prior to "the Veterans' Benefits Amendments of 1989, Pub. L. No. 101-237, 103 Stat. 2062 (1988), which added the statutory provision mandating that decisions denying benefits include a statement of the reasons for that decision"); see also Eddy v. Brown, 9 Vet. App. 52, 58 (1996) (holding that "silence in a final [RO] decision made before February 1990 cannot be taken as showing a failure to consider evidence of record"). Accordingly, to establish clear and unmistakable error in a pre-February 1990 RO decision, it must be clear from the face of that decision that a particular fact or law had not been considered in the RO's adjudication of the case. Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005). In this case, the Board finds that although the RO was not required to provide a statement of reasons or bases for their decision in adjudicating the Veteran's claim in 1977, because the RO did include reasons and bases for their finding that service connection was not warranted, it is clear as to what the RO did and did not consider in reaching that conclusion. Therefore, it is clear from the face of that decision that the RO did not consider the laws regarding a pre-existing condition. Furthermore, as the laws governing a pre-existing condition are so vastly different from those governing standard service connection, the Board is not willing to assume that the RO considered those laws in this case. As the first prong of a CUE determination has been met as the Board finds that the statutory/regulatory provisions extant at that time were not correctly applied, the Board now turns to the second prong that the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made. The Veteran entered service without any psychiatric conditions being noted during his enlistment examination. However, as previously stated, the evidence clearly shows that the Veteran's psychiatric disorder existed prior to service, namely the records from the May 1973 service treatment report and the post-service June 1977 VA psychiatric examination, which both stated that the Veteran had been previously treated for a psychiatric problem. According to the governing regulation extant in July 1977, notation or discovery during service of such residual conditions with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they pre-existed service. 38 C.F.R. § 3.303(c) (1977). Therefore, the remaining issue is whether the pre-existing condition was aggravated by service. The evidence at the time of the July 1977 rating decision demonstrates that the Veteran entered service in good health without signs or symptoms of a psychiatric disorder, but began having problems with various symptoms related to nervousness and anxiety shortly after entrance into service. It was noted in May 1973 that the Veteran had difficulty since entry in military service in that he failed physical training in basic combat training and ever since had vague complaints of diarrhea associated with anxiety or stressful situations, which was uncontrolled with medication. Significantly, the Veteran's mother stated that following discharge he had been extremely nervous and frustrated when attempting to secure employment and he was diagnosed during the June 1977 VA examination with anxiety neurosis and abstracting ability was found to be fair. Such findings were not present at induction into service and demonstrate, along with the multiple treatment regarding diarrhea and anxiety during service, permanent aggravation of his pre-existing condition. Following a review of the record at the time of the July 1977 rating decision, the Board agrees that the RO committed CUE in its July 1977 rating decision. The Board finds that, without the error of law in the July 1977 decision, the claim for service connection for an anxiety disorder would have been granted on the basis of aggravation of a pre-existing condition. In light of the evidence of record at the time of the July 1977 rating decision, this conclusion is undebatable as reasonable minds could not differ on it. In particular, the Veteran's service treatment records clearly show that the Veteran was previously treated for a psychiatric condition prior to service, he exhibited no symptoms of a psychiatric condition on entrance, and during service he began having symptoms of anxiety that continued following service. Thus, it is undebatable that service connection for an anxiety disorder would have been warranted at the time of the July 1977 decision. Based on the foregoing, the Board concludes that there was clear and unmistakable error in the July 1977 rating decision and it must be revised. Accordingly, the July 1977 decision is reversed, and the claim of entitlement to service connection for an anxiety disorder is granted, as if the July 1977 decision had never been rendered. CONTINUED ON NEXT PAGE ORDER The July 1977, rating decision contains clear and unmistakable error, and is revised to reflect a grant of service connection for an anxiety disorder. ____________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs