Citation Nr: 18141651 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-01 789 DATE: October 11, 2018 ORDER Entitlement to an earlier effective date for service connection for delusional disorder and parasomnia (claimed as chronic paranoid schizophrenia with delusional disorder and parasomnia), for substitution purposes, is denied. REMANDED Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. 1318 is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. FINDINGS OF FACT 1. A claim for service connection for a nervous condition was received in March 1956. 2. A claim for service connection for a neuropsychiatric disability was denied in a June 1960 Board decision. 3. A claim to reopen service connection for a psychiatric disability was received in October 2005. 4. A February 2006 rating decision denied service connection for PTSD and depression and denied reopening of service connection for schizophrenic reaction. The Veteran filed a notice of disagreement with the February 2006 rating decision but did not file a substantive appeal. 5. A claim to reopen service connection for chronic paranoid schizophrenia was received on February 17, 2012. A July 2012 rating decision granted service connection for chronic paranoid schizophrenia, effective from February 17, 2012. 6. The June 1960 Board decision was reasonably supported by the evidence then of record, was consistent with existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome. CONCLUSION OF LAW The criteria for an effective date earlier than February 17, 2012 for service connection for delusional disorder and parasomnia are not met. 38 U.S.C. §§ 5110, 7104; 38 C.F.R. §§ 3.105(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from February 1950 to February 1954. The Veteran died in January 2013. The appellant is the Veteran’s surviving spouse. The appellant testified at a Board hearing in May 2018. Entitlement to an earlier effective date for service connection for delusional disorder and parasomnia (claimed as chronic paranoid schizophrenia with delusional disorder and parasomnia) for substitution purposes Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The date of receipt of a claim is the date on which a claim, information, or evidence is received by the VA. 38 C.F.R. § 3.1 (r). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1 (p), 3.155; Brannon v. West, 12 Vet. App. 32, 34-5 (1998). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). VA regulations provide that a veteran may receive benefits by filing an informal claim. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. A report of examination or hospitalization that meets certain criteria will be accepted as an informal claim for an increase or to reopen provided the report relates to a disability that may establish entitlement. 38 C.F.R. § 3.157 (a). The date of outpatient or hospital examination or date of admission to a VA or uniformed service hospital will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157 (b)(1). Evidence received from a private physician or layperson will also be accepted as a claim when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157 (b)(2). Generally, a claim which has been disallowed by the Board is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b); 38 C.F.R. §20.1100. If an AOJ decision is appealed to the Board and the Board issues a decision, that Board decision subsumes the underlying decision. 38 C.F.R. § 20.1104. Unless the Chairman of the Board orders reconsideration of a Board decision, the Board decision is final on the date of mailing stamped on the face of the decision. 38 U.S.C. § 7103 (a); 38 C.F.R. § 20.1100. Except as provided by 38 U.S.C. § 5108, a claim that has been disallowed by the Board may not thereafter be reopened and allowed and a claim based on the same factual basis may not be allowed. 38 U.S.C. § 7104 (b). Previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a). However, if the evidence establishes CUE, the prior decision will be reversed and amended. In determining whether a prior determination involves CUE, the 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 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. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992). The Court has stated that 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. Thus, even where 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). A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). The mere misinterpretation of facts also does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). In Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a breach of a duty to assist cannot constitute CUE and that "grave procedural error" does not render a decision of VA non-final. The Federal Circuit, citing Caffrey v. Brown, 6 Vet. App. 377 (1994), also noted that a CUE claim is an attack on a prior judgment that asserts an incorrect application of law or fact, and that an incomplete record, factually correct in all other respects, is not CUE. Id. at 1346. The failure to address a specific regulatory provision involves harmless error unless it is shown that the outcome would have been "manifestly different." See Fugo, at 44. Moreover, the error must be one that would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). The appellant seeks an earlier effective date for service connection for delusional disorder and parasomnia. She asserts that there was clear and unmistakable error in a June 1960 Board decision that denied service connection for a psychiatric disorder. At the Board hearing, the appellant’s representative asserted that the evidence considered in the decision was not properly considered or developed. The appellant’s representative indicated that the Veteran was admitted to a state hospital in 1959, and medical records at that time showed that his wife reported that he had delusions and strange behavior. The appellant’s representative asserted that VA erred in the duty to assist by not contacting the Veteran’s first wife to obtain information about his psychiatric symptoms. The Veteran had active service from February 1950 to February 1954. Following separation from service, a claim for service connection for a nervous disorder was received in March 1956. An October 1956 rating decision denied service connection for a nervous condition. The Veteran appealed the rating decision to the Board. A June 1960 Board decision denied service connection for a neuropsychiatric disability. The Board decision noted that the Veteran reported insomnia during service in 1951, a feeling of being paralyzed before going to sleep, and sweating at night. The decision found that there was no further record or a psychiatric disorder during the remainder of service, and no psychiatric disorder was noted upon discharge. The decision noted that the Veteran sought outpatient psychiatric treatment in March 1956. The decision noted that the Veteran was admitted to a VA hospital in January 1958 complaining of nervousness. A psychiatric examination found that he was markedly paranoid in regard to his wife. He was released from the hospital in February 1958 against medical advice. Diagnoses included schizophrenic reaction, paranoid type. The Board concluded that there was no psychiatric disability identified upon separation from service. The Board also found that schizophrenic reaction was diagnosed several years after service. The Board found that schizophrenic reaction was not incurred in or aggravated by service and did not manifest to a compensable degree within a year of service. Therefore, the Board concluded that service connection for a neuropsychiatric disability was not warranted. In October 2005, the Veteran submitted a claim to reopen service connection for a nervous disability and a claim for service connection for PTSD. A February 2006 rating decision denied service connection for PTSD and depression and denied the claim to reopen service connection for schizophrenic reaction. The Veteran submitted a notice of disagreement with the denial of service connection for PTSD and depression. The RO issued a statement of the case in March 2008. The Veteran did not file a substantive appeal within 60 days of the Statement of the Case, and the February 2006 rating decision became final. A claim to reopen service connection for chronic paranoid schizophrenia was received on February 17, 2012. In July 2012, the Veteran had a VA examination. The VA examiner opined that the Veteran’s paranoid schizophrenia was related to active service, as he had signs and symptoms of anxiety in service according to statements from his first wife. A July 2012 rating decision granted service connection for delusional disorder and parasomnia, effective from February 17, 2012. The Board notes that VA treatment records dated in 1958 and state hospital records dated in November 1959, which were of record at the time of the June 1960 Board decision, showed diagnoses of schizophrenic reaction. However, those medical records did not indicate that schizophrenic reaction manifested during service or within one year of separation from service. Thus, at the time of the prior Board decision, there was no competent medical evidence linking his diagnosed schizophrenic reaction to service. The appellant’s disagreement with how the facts were weighed by the Board does not provide a basis for a finding of CUE. To the extent that additional evidence from the Veteran’s wife was not obtained in conjunction with the decision, the Board emphasizes that a failure of the duty to assist cannot constitute CUE. In the absence of the kind of error of fact or law which would compel the conclusion that the result would have been manifestly different but for the error, there is no basis upon which to find CUE in the June 1960 Board decision. Accordingly, revision of the June 1960 Board decision on the basis of CUE is not warranted, and the June 1960 Board decision is final. Given that the June 1960 Board decision and subsequent February 2006 rating decision both became final, in the July 2012 rating decision, the RO appropriately assigned the earliest effective date possible based on the filing to reopen the case after final disallowances, subsequent to the laws governing the assignment of effective dates as stated in 38 C.F.R. § 3.400. Therefore, the effective date of February 17, 2012 is appropriate. For the foregoing reasons, an earlier effective date prior to February 17, 2012 for service connection for delusional disorder and parasomnia (claimed as chronic paranoid schizophrenia with delusional disorder and parasomnia) is not warranted. The Board has considered the benefit of the doubt doctrine in this decision. REASONS FOR REMAND 1. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is remanded. 2. Entitlement to service connection for the cause of the Veteran's death is remanded. The appellant asserts that the Veteran’s cause of death was related to medications that were used to treat his service-connected delusional disorder and parasomnia. At the Board hearing, the appellant testified that the Veteran was treated with Clonazepam, which caused dizziness, poor coordination, and weakness. The Veteran’s death certificate shows that his cause of death was complications of closed head injury due to a fall. A medical opinion is necessary to determine whether the Veteran’s fall and closed head injury was related to the medications used to treat delusional disorder and parasomnia. The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate clinician regarding the issue of service connection for the cause of the Veteran’s death. The examiner must opine whether it is at least as likely as not that the Veteran's service-connected delusional disorder and parasomnia, to include his medications for those disorders, was a principal or contributory cause of the Veteran’s death or materially hastened his death. The examiner should consider the appellant’s testimony at the May 2018 Board hearing, that the Veteran was on Clonazepam, which caused dizziness and poor coordination. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Catherine Cykowski