Citation Nr: 1804990	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-15 343A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama



THE ISSUE

Whether a September 1981 Board decision, which denied service connection for paranoid schizophrenia, should be revised or reversed on the grounds of clear and unmistakable error (CUE). 



REPRESENTATION

Moving party represented by:	J. Michael Woods, Attorney at Law



ATTORNEY FOR THE BOARD

D.M. Casula, Counsel


INTRODUCTION

The Veteran had active service from June 1977 to August 1977, and from August 1978 to June 1979. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which found there was no CUE in a September 1981 Board decision which denied a claim for service connection for paranoid schizophrenia. 


FINDING OF FACT

A September 1981 Board decision, which denied service connection for paranoid schizophrenia, was reasonably supported by evidence then of record and prevailing legal authority; the September 1981 Board decision was not undebatably erroneous. 


CONCLUSION OF LAW

There was no CUE in the September 1981 Board decision which denied service connection for paranoid schizophrenia.  38 U.S.C. § 7111 (2012); 38 C.F.R. § 20.1403 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Factual Background

Service treatment records (STRs) showed that on enlistment examinations in February 1977 and in August 1978, the Veteran's psychiatric evaluation was assessed as normal.  

In a November 1978 Medical Board Report, it was noted that the Veteran was hospitalized in the Psychiatric Service at the Naval Regional Medical Center, Long Beach, California, on November 2, 1978, with a diagnosis of paranoid schizophrenia, after evidencing bizarre behavior.  He had been referred to the base chaplain by his unit because he was acting strangely, and was telling his friends that he believes someone was 'putting acid in my soap', and was having difficulty following orders.  He reportedly told the chaplain that ever since he was 15 years old he had been having strange experiences and at that age he had a visionary experience in which he was with a girl who was grabbed by someone and thrown into a car which disappeared in flames, and later his girlfriend reappeared.  It was noted that since then, the Veteran often felt delusions of control; for example, he believed himself to be the descendant of the prophet Jeremiah and said he had been given special abilities.  He was admitted for observation, evaluation, treatment, and further disposition.  He also reported that he attempted to go to junior college for one year, but during that time he felt that people were trying to destroy him.   The medical report also noted that during the year he began keeping a personal journal which was full of delusional thinking.  

The Medical Board Report further stated that after an adequate period of observation, evaluation, and treatment, a conference of staff psychiatrists reviewed the available records and agreed that the Veteran suffered from a mental illness of psychotic proportions that precluded his rendering any further useful military service.  The primary diagnosis was schizophrenia, paranoid type, chronic, moderate, unchanged, EPTE, manifested by paranoid delusions, ideas of reference, delusions of control, depersonalization flat affect, poor insight, poor rapport and unreliable judgment.  The precipitating stress was listed as mild, routine military service.  The preservice disposition was listed as severe, present condition did exist prior to enlistment.  Military impairment was listed as severe, unfit for duty.  The Medical Board agreed with the findings and diagnosis and was of the opinion that the Veteran was unfit for further service as a result of physical disability, and that the physical disability existed prior to his enlistment and had not progressed at a rate greater than usual for such disorders, and therefore was considered to have been neither incurred in or aggravated by a period of active duty.  The Medical Board was of the opinion that the Veteran had received the maximum benefits of military hospitalization and treatment, and a further relatively short term VA hospitalization was indicated in order to affect a suitable transition back to civilian life.

A Hospital Summary (VA Form 10-1000) showed that the Veteran was admitted, while in service, to Veterans Administration Medical Center (VAMC) in Tuscaloosa, Alabama, on December 22, 1978, after being transferred from the Long Beach Naval Hospital, where he was hospitalized for 6 weeks.  The admitting diagnosis was schizophrenia, paranoid type, chronic.  He denied prior treatment for his emotional condition and felt his sergeant and others should have had treatment instead of him.  He was admitted to the psychiatric unit, started on medication, and responded to treatment.  In February 1979, his medication was reduced and he was soon able to function with full privileges.  He was granted a 14 day leave of absence to test his adjustment at home, and when he returned he stated his visit was okay.  On March 1, 1979, he stated he was ready to go home, and that he could live with his uncle and get a job.  He had progressed to the point his medication was discontinued, and he was discharged on March 2, 1979.  The primary diagnosis was schizophrenia, paranoid type.

A Hospital Summary (VA Form 10-1000) showed that the Veteran was hospitalized, after service, at a VA facility in Tuskegee, from December 1979 to February 1980.  He was admitted with the complaint he sprained his foot and had a headache, and on admission he appeared to be talking to himself and exhibiting a bizarre smile, but he was cooperative and reported no other complaints.  He denied delusions, hallucinations, or suicidal or homicidal ideations.  He remained in a mild psychotic state during the hospital course, and repeatedly requested release, which led to his discharge to his own custody.  He was discharged regular, effective February 8, 1980, on the same medications, and his prognosis was guarded.  It was noted that he remained in moderate remission from his psychiatric disorder.  The primary diagnosis was listed as schizophrenia, schizoaffective type.

A Hospital Summary (VA Form 10-1000) showed that the Veteran was again hospitalized, after service, at a VA facility in Tuskegee, from August 1980 through October 1980.  He was admitted in August 1980 with commitment papers after disturbing the peace in the neighborhood.  Initially he remained paranoid and delusional, but later with medication, supportive therapy, and reality testing, he started to improve.  He continued to improve and was given a regular discharge.  The primary diagnosis was listed as schizophrenia, paranoid type.

In the September 1981 decision, the Board determined that the history the Veteran gave while in service clearly revealed that he was suffering from psychotic symptoms prior to entering the Marine Corps, and service connection for psychiatric disease could therefore be favorably considered only on the basis of aggravation, or increase in disablement while the Veteran was on active duty.  The Board also determined that based on a review of the record, no such increase was found and that rather, the psychiatric symptoms in service appeared to be a continuation of those described as having been present prior to service with no increase in the basic underlying pathology.  The Board concluded that the Veteran clearly suffered from a psychiatric disorder prior to enlistment; that during service, this psychiatric disorder was diagnosed as schizophrenia, paranoid type; and that the degree of disablement due to that disorder did not increase during service.  The Board concluded that the presumption of soundness - arising because a psychiatric disorder was not noted when the Veteran was examined and accepted for service - had been rebutted, and that the Veteran's paranoid schizophrenia was not incurred in or aggravated by his military service.  

In a letter dated in October 2016, the Veteran's attorney contended that there was CUE in the Board's September 1981 decision, and that the Veteran should be granted service connection for paranoid schizophrenia back to June 26, 1979.  The representative cited 38 C.F.R. § 3.304(b) regarding the presumption of soundness and noted that the Veteran's entrance examination in August 1978 made no mention of a current or pre-existing mental health condition.  The attorney noted that a service treatment record dated December 22, 1978 showed that the Veteran was treated for schizophrenia, paranoid type, and was admitted to an open psychiatric ward and treated with individual and milieu therapy.  The attorney further noted that a Medical Board Report dated in 1978 stated that the Veteran was discharged by reason of physical disability existing prior to entry on active duty and not aggravated by service, and also stated that the Veteran told a chaplain he has been having strange experience since he was 15 years old.  The attorney indicated the Veteran's statement was not sufficient proof of a preexisting mental health condition as he was not qualified to make a medical determination.  

II. Analysis

A Board decision is subject to revision on the grounds of CUE and will be reversed or revised if evidence establishes such error.  38 U.S.C.A. § 7111 (a).  Motions for review of Board decisions on the grounds of CUE are adjudicated pursuant to 38 C.F.R. §§ 20.1400-20.1411.  According to the regulations, CUE is a very specific and rare kind of error.  It is the kind of error, of fact or of 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, CUE is present when 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.  38 C.F.R. § 20.1403 (a).  Review for CUE in a prior Board decision must be based on the record and the law that existed when the decision was made.  38 C.F.R. § 20.1403 (b). 

The regulations further provide that to warrant revision of a Board decision on the grounds of CUE, 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 CUE.  38 C.F.R. § 20.1403 (c).  Examples of situations that are not CUE include the following:  (1) changed diagnosis (a new diagnosis that "corrects" an earlier diagnosis considered in a Board decision); (2) duty to assist (VA failure to fulfill the duty to assist); and (3) evaluation of evidence (a disagreement as to how the facts were weighed or evaluated).  38 C.F.R. § 20.1403 (d).  Moreover, CUE 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.  38 C.F.R. § 20.1403 (e). 

It should be noted that the above-cited regulatory authority was published with the specific intent to codify the requirements for a viable claim of CUE in rating decisions.  In brief, the court cases indicate that 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 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.  Similarly, VA's breach of its duty to assist cannot form a basis for a claim of CUE.  See Baldwin v. West, 13 Vet. App. 1 (1999); Bustos v. West, 179 F.3d 1378 (Fed.Cir. 1999); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993). 

At the time of the September 1981 Board decision, governing law and regulation provided that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 331 (1981).  

A veteran who served during a period of war or during peacetime service after December 31, 1946 is presumed in sound condition upon entrance into service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated during service.  38 U.S.C. §§ 311, 337 (1981). 

A preexisting disease or injury will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  38 U.S.C. § 353; 38 C.F.R. § 3.306(a) (1981). 

A review of the evidence which was of record at the time of the 1981 Board decision reflects that a psychiatric disorder was not objectively noted at the August 1978 enlistment examination.  Thus, the presumption of soundness applies, although it may be rebutted by clear and unmistakable evidence showing pre-service existence of these conditions.  In its September 1981 decision, the Board found that such presumption was rebutted, finding that the evidence clearly established that the Veteran had a psychiatric disorder prior to his entrance into active service.  Such evidence included service medical records and post-service medical records, as well statements by the Veteran.  The Board also found that the Veteran's pre-service schizophrenia, paranoid type, did not increase in severity in service, as there was no increase in the basic underlying pathology.  

In reviewing the 1981 decision, the Board finds that the Veteran is essentially arguing a disagreement with how the facts were weighed in the 1981 decision.  As noted above, the attorney indicated the Veteran's statement to a chaplain that he had been having strange experiences since he was 15 years old, was not sufficient proof of a preexisting mental health condition.  The Board notes, however, that Medical Board findings that the Veteran's schizophrenia, paranoid type existed prior to his enlistment and had not progressed at a rate greater than usual for such disorders, were made by a conference of staff psychiatrists.  Thus, the Veteran's assertions do not present a permissible basis for a CUE claim, since there is evidence both pro and con on the issue, and it is therefore impossible for him to succeed in showing that the result would have been manifestly different.  38 C.F.R 20.1403 (d)(3); Simmons v. West, 13 Vet. App. 501 (2000); Fugo, supra. 

The correct facts were before the Board in September 1981, and the file shows that the Board properly considered the evidence and law when making its 1981 decision.  Considering the evidence available at the time of the 1981 Board decision, and governing law and regulations, there is nothing to compel a conclusion, to which reasonable minds could not differ, that service connection should have been granted.  There was no undebatable error of fact or law that would have manifestly changed the outcome, and the Board finds no CUE in the September 1981 Board decision.  38 C.F.R. § 20.1403.



ORDER

The motion that there was CUE in a September 1981 Board decision, which denied service connection for paranoid schizophrenia, is denied.




____________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs