Citation Nr: 18139994 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-20 166 DATE: October 2, 2018 ORDER The appeal for a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. As the June 18, 1997 Reginal Office (RO) rating decision contained clear and unmistakable error (CUE) in the denial of service connection for a mental health disorder. REMANDED The issue of a higher initial disability rating in excess of 50 percent for PTSD with major depressive disorder NOS and alcohol abuse is remanded. FINDINGS OF FACT 1. Per the Veteran’s July 2017 Central Office hearing testimony before the Board, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the issue of entitlement to a TDIU. 2. A June 18, 1997 rating decision denying service connection for a mental health disorder was not based on the evidence then of record, and did not constitute a reasonable exercise of rating judgment; but for the factual error, the outcome would have been manifestly different—namely, service connection for the mental health disorder of dysthymia would have been granted. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for a TDIU. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The June 18, 1997 rating decision denying service connection for the mental health disorder was clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.102, 3.303 (1997); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1994 to December 1996, from April 2009 to July 2009, and from May 2012 to October 2012. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, and a December 2015 rating decision of the RO in Waco, Texas. The Veteran testified in Washington, DC, at a July 2017 Central Office hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. 1. Entitlement to a TDIU Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. Per the Veteran’s July 2017 Central Office hearing testimony before the Board, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the issue of entitlement to a TDIU. As the Veteran has withdrawn the appeal regarding the TDIU issue, there remain no allegations of errors of fact or law for appellate consideration. See 38 U.S.C. § 7104 (2012). Accordingly, the Board does not have jurisdiction to review this issue, and the issue of entitlement to a TDIU will be dismissed. 2. CUE in June 18, 1997 Rating Decision Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory 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 C.F.R. § 3.105(a). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither the correct facts, as they were known at the 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 of 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 CUE 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) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). In the present case, the Veteran alleges CUE in a prior June 18, 1997 rating decision that denied service connection for a mental health disorder. The pertinent laws and regulations at the time of this decision were similar, if not essentially the same, as they are now. First, 38 C.F.R. § 3.303(a) provided then, as now, that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(a) (1997). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Second, under 38 U.S.C. § 5107 (1994), a veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Third, 38 C.F.R. § 3.102 (1991), both then and now, states that when a reasonable doubt arises due to an approximate balance of positive and negative evidence, such doubt shall be resolved in favor of a veteran. At the outset, the Board notes that the June 18, 1997 rating decision became final, as the Veteran did not file a timely NOD to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Next, the Board finds the allegations of CUE made by the Veteran are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). The moving party in this case has filed the CUE motion pro se. Although CUE motions must be pled specifically, a pro se motion must be read sympathetically, notwithstanding the specific pleading requirements set for in regulation. See Bowen v. Shinseki, 25 Vet. App. 250, 254 (2012). Further, the “manifestly changed outcome” pleading requirement may be inferred from pro se pleadings, even though not explicitly stated. See Canady v. Nicholson, 20 Vet. App. 393, 401-02 (2006). The Veteran has argued that the RO in June 1997 made a factual error concerning the state of her mental health in service that, had it not been made, would have resulted in a manifestly different outcome—namely, that service connection for a mental health disorder, diagnosed as dysthymia, would have been granted. The Board agrees. The Veteran entered service with no preexisting mental health disability identified at her entrance examination, and was therefore presumed sound upon admission. She sought treatment for suicidal ideation while on active duty in February 1996. She was diagnosed at the time with “adjustment disorder with emotions and conduct.” An emergency room report dated February 18, 1996 shows that her chief complaint was “suicidal ideation/depression.” Service treatment records confirm the Veteran was subsequently physically assaulted in April 1996 on more than one occasion, resulting in several abrasions all over her body, a broken finger, and a periorbital contusion around her eye. An in-service report notes that a male servicemember hit her with a closed fist and kicked her in the head and back, and then hit her in the head with a lamp. Upon separation from service, on her November 1996 report of medical history, the Veteran conveyed having symptoms of depression or excessive worry. In the corresponding physician’s summary, the in-service physician specifically noted that the Veteran had been diagnosed with, and treated for “depression” on several occasions during service. One month after her discharge, in January 1997, the Veteran filed for service connection with VA for a mental health disorder (claimed at the time as adjustment disorder and depression). The Veteran received a VA mental health examination in March 1997. At the examination, the VA examiner noted the Veteran was treated for depression during her period active duty service. The Veteran was noted to have emotional complaints, including depressed mood with frequent crying spells and fleeting suicidal ideations. At the examination, the Veteran reported that she was physically and sexually abused while she served in the military by a fellow soldier, and that this abuse continued for approximately one year. At the conclusion of the examination, the VA examiner indicated that the Veteran’s presentation “most clearly resembles a depressive disorder.” He then diagnosed the Veteran specifically with dysthymia. The examiner offered no specific medical opinion as to whether the disability had onset during service, or was related to her documented in-service personal assault; however, as discussed below, his discussion as to how he reached the diagnosis of dysthymia strongly favors a finding that the disability had in-service onset. In the June 18, 1997 rating decision, the RO denied the Veteran’s service-connection claim for a mental health disorder because, “the service medical records are negative for treatment of a dysthymia disorder.” The Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV)—current at the time of the 1997 rating decision—identifies dysthymic disorder as a mood disorder, characterized by depressed mood. Dysthymia was defined in Dorland’s Illustrated Medical Dictionary (27th ed. 1988) at the time as “a mood disorder characterized by depressed feeling . . . .” While it may be true that dysthymia, specifically, was not diagnosed during the Veteran’s service, as outlined above, the Veteran’s service treatment records very clearly document complaints of, and treatment for depression—dysthymia’s signature symptom. Moreover, the VA examiner who diagnosed dysthymia specifically recognized treatment for depression and suicidal ideation during active duty service, and noted that her symptoms “clearly resemble a depressive disorder.” Insofar as (1) dysthymia was diagnosed and characterized as a “depressive disorder” by a March 1997 VA examiner upon review of the Veteran’s in-service medical history, interview of the Veteran and examination; (2) the medical literature at the time defined “dysthymia” as a mood disorder characterized by depression, and (3) because the Veteran’s service treatment records include documented treatment and diagnosis of depression and suicidal ideation, the Board finds that the RO made a clear and unmistakable factual error when it summarily found that the Veteran’s service medical records were negative for treatment of a dysthymic disorder. Having stated as much, the next question for the Board is whether the factual error, had it not been made, would have manifestly changed the outcome of the rating decision. In other words, is it undebatable that service connection for a mental health disability (in this case, dysthymia) would have been granted if not for the RO’s factual error? While the March 1997 VA examiner did not provide a nexus opinion, he did indicate that the Veteran’s symptoms (as presented in-service, and post-service) clearly resemble a “depressive disorder,” strongly suggesting in-service incurrence of the disability. Notably, the Veteran also underwent a VA general medical examination in March 1997, and the examiner indicated that the Veteran was “off sick for two weeks [during service] because of a psychiatric problem following a physical assault.” As noted above, service treatment records from February 1996 show treatment for depression, suicidal ideation and adjustment disorder. They document that the Veteran was severely assaulted in April 1996 (for what was noted to be the second time). Her in-service physician, upon separation, noted diagnosis and treatment for “depression” on multiple occasions during service. The Veteran filed for service-connection for a mental health disability one month after separation. Approximately three months after separation, she reported to the March 1997 VA examiner that she was physically and sexually abused for about a year during service. Based on her in-service mental health history, coupled with her symptoms shown at the time, the March 1997 VA examiner diagnosed a “depressive disorder”—namely, dysthymia, which, as discussed above, is a mood disorder characterized by depressed feelings. Another March 1997 VA examiner observed her psychiatric symptoms to be due to her physical assault. The Board finds that had the RO not made a factual error in finding that the Veteran received no treatment for a depressive disorder (i.e. dysthymic disorder) in service, the benefit sought on appeal would have been granted based on in-service incurrence. The Board concludes that the RO committed clear and unmistakable error in the June 18, 1997 rating decision denying service connection for her mental health disorder. The June 18, 1997 rating decision will be revised to reflect a grant of service connection for dysthymia, subject to controlling regulations governing the payment of monetary awards. REASONS FOR REMAND Higher Initial Disability Rating for PTSD A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (19930. At the July 2017 Central Office hearing, the Veteran testified that the symptoms of her service connected PTSD with major depressive disorder NOS and alcohol abuse had worsened since the November 2015 VA mental health examination. VA also received VA treatment records indicating that the mental health symptoms may have worsened. As such, the Board finds remand for a new VA mental health examination to be warranted. The mental health rating issue is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private mental health treatment (medical) records. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the mental health disability, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s mental health disability, not already of record, for the period from August 2017. 3. Schedule the Veteran for an appropriate VA mental health examination. The relevant documents in the record should be made available to, and reviewed by the examiner. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. Upon examination of the Veteran, the VA examiner should report the extent of the Veteran’s mental health symptomatology in accordance with VA rating criteria. 4. Then, readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel