Citation Nr: 18148535 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-40 352 DATE: November 7, 2018 ORDER Entitlement to revision of a November 1998 decision on the basis of clear and unmistakable error (CUE) is granted; the November 1998 decision is revised to show a grant of entitlement to service connection for a generalized anxiety disorder effective from November 25, 1997. FINDING OF FACT 1. A November 1998 rating decision committed clear and unmistakable error by considering a claim for service connection for posttraumatic stress disorder (PTSD) but not considering a raised claim for service connection for generalized anxiety disorder (then characterized as a nervous disorder) despite the RO’s having recognized that claim. 2. At the time of the November 1998 rating decision the evidence preponderated in favor of a grant of service connection for a generalized anxiety disorder. CONCLUSION OF LAW The criteria for entitlement to revision of November 1998 rating decision based on CUE to reflect a grant of entitlement to service connection for generalized anxiety disorder have been met. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105(a) (2018); 38 C.F.R. §§ 3.1(p), 3.303 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969, including combat service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge. The Veteran’s authorized representative in a June 2018 Informal Hearing Presentation raised the issue of entitlement to service connection for an alcohol use disorder as secondary to any acquired psychiatric disorder. Because the Board has herein granted service connection for generalized anxiety disorder effective from November 25, 1997, this request to file a claim for service connection for an alcohol use disorder on a secondary basis is referred for appropriate action. 1. Claim of entitlement to revision of a November 1998 Department of Veterans Affairs (VA) Regional Office (RO) decision to a grant of service connection for generalized anxiety disorder, based on CUE in that decision. A previous RO determination that is final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior decision will be reversed or amended. 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. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). 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. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The Board here finds that the RO erred in its November 1998 decision in failing to address a claim raised for service connection for a generalized anxiety disorder (then characterized as a nervous disorder), and that but for that error the outcome would have been manifestly different. As then applicable. a “claim” was defined broadly to include 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) (1998). However, to establish a claim, the Veteran must assert the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (holding that, while the Board must interpret a veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the veteran). The Veteran submitted a formal claim on November 25, 1997 for “PTSD.” However, the Veteran also then submitted an accompanying statement in support of claim informing that he sought service connection for “residuals of combat service (PTSD).” Thus, the Veteran did not entirely restrict his claim to service connection for PTSD, implying that his residuals of combat service may constitute PTSD. The Veteran also then informed that he had “served ‘in country’ in Vietnam from May 1968 – May 1969.” The Veteran also accurately reported that he received the Bronze Star Medal, for distinguished service against hostile forces while serving in Vietnam. The Veteran’s Citation for his Bronze Star Medal informs that this was awarded for his actions in a “combat environment.” His service personnel records also inform of his being awarded an Combat Infantryman Badge (CIB). The RO by a February 1998 letter informing of receipt of the Veteran’s claim stated, “We have received your claim for disability compensation for a nervous disorder.” Thus, effectively, the RO then recognized a broader claim for service connection for a nervous disorder, not a claim merely for PTSD, and provided the Veteran notice that it was adjudicating that broader claim. The RO was thus then required to address that broader claim for service connection for a “nervous disorder,” and not limit its consideration to a claim for PTSD. Upon VA PTSD examination in September 1998, the Veteran was noted to have served in Vietnam from May 1968 to May 1969. At the examination the Veteran reported having a nervous problem since service, when he was in the infantry in Vietnam and most of the soldiers in his unit were badly injured as a result of a friendly fire incident and a good friend was killed. He reported that since he left the service he had drunk six to eight beers every night to be able to go to sleep. The examiner carefully reviewed the record, examined the Veteran, and concluded that while the Veteran did not meet the diagnostic criteria for PTSD, he did have “what appears to be anxiety problems since his service in Vietnam.” The examiner diagnosed generalized anxiety disorder. Thus, before the RO in November 1998 when it adjudicated the Veteran’s claim was a recognized claim for service connection for a nervous disorder, the Veteran’s report of a nervous disorder present since service and related to combat experiences in service, and a VA examiner assessing that the Veteran did have a nervous disorder present since service. Evidence explicitly contrary to the Veteran suffering from a nervous disorder since service was not then presented in the record. The Board finds that based on this evidence then of record and scope of claim recognized by the RO, it was clear and unmistakable error for the RO not to have considered a claim for a nervous disorder or anxiety disorder in its November 1998 decision, when it only addressed PTSD and found that the Veteran did not have a diagnosis of PTSD to support the claim. 38 C.F.R. § 3.103(a). Reasonable minds could not differ: the RO should have addressed the broader claim for service connection for a nervous disorder which it had recognized and which it voiced to the Veteran that it had recognized and which was then supported by the evidence of record. Based on such evidence of record at the time preponderating in favor of service connection for an anxiety disorder originating in service, the Board finds that CUE was committed by the RO in its November 1998 decision, and that service connection for an anxiety disorder is warranted effective from the November 25, 1997 date of receipt of claim. 38 C.F.R. §§ 3.303, 3.400. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter