Citation Nr: 1807008	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  08-09 283	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether there was clear and unmistakable error (CUE) in the October 1999 and April 2000 rating decisions that denied the Veteran's claim for service connection for a psychiatric disorder.

2.  Entitlement to an effective date earlier than June 21, 2004, for the grant of service connection for delusional disorder, persecutory type.  


REPRESENTATION

Veteran represented by:	Timothy M. MacArthur, Attorney at Law


ATTORNEY FOR THE BOARD

A-L Evans, Counsel


INTRODUCTION

The Veteran served on active duty from February 1975 to February 1978.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of September 2007 and August 2016 rating decisions of the Department of Veterans Affairs (VA).

In an August 2011 Board decision, the Veteran's claim for entitlement to an effective date earlier than June 21, 2004, for the grant of service connection for delusional disorder, persecutory type, was denied.  

The Veteran appealed the August 2011 decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2013 Memorandum Decision, the Court vacated the Board's decision regarding the issue and remanded the matter to the Board for compliance with the terms of the decision.  

Subsequently, in a November 2015 brief, the Veteran's attorney made a claim of CUE in October 1999 and April 2000 rating decisions denying the Veteran's claim for service connection for a psychiatric disorder.  Since that time, this claim has been adjudicated by the RO and the matter is now before the Board.

In March 2016 and February 2017, the Board remanded the case for further development.  Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACTS

1.  The Veteran has not alleged an error of fact or law in the April 1999 and October 2000 rating decisions that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error.

2.  The Veteran did not appeal a February 2003 rating decision from the RO, which denied entitlement to service connection for a psychiatric disorder.

3.  No subsequent claim of service connection for a psychiatric disorder was received prior to June 21, 2004.


CONCLUSION OF LAW

1.  The RO's October 1999 and April 2000 rating decisions are not clearly and unmistakably erroneous.  38 U.S.C. §§ 1110, 5109A, 7104, 7105 (2012); 38 C.F.R. § 3.104(a), 3.105(a), 3.160(d), 20.302, 20.1103 (2017).

2.  The criteria for an effective date earlier than June 21, 2004, for a grant of service connection for delusional disorder, persecutory type, have not been met.  38 U.S.C. § 5110 ( 2012); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).  A review of the Veteran's claims file reveals that all of the development ordered by both the Board and the Court has been completed.  Notably, a Statement of the Case was issued in April 2017 regarding the issue of CUE.  A Supplemental Statement of the Case regarding the issue of an earlier effective date was also issued in April 2017.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Analysis

CUE Claim

Generally, once a decision becomes final, it may only be revised by a showing of CUE.  See 38 C.F.R. §§ 3.104, 3.105.  CUE is recognized to be a very specific and rare kind of error of fact or law that compels the undebatable conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error.  Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  As such, to establish CUE, a claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated.  Eddy v. Brown, 9 Vet. App. 52 (1996); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly holding that in order to prove the existence of clear and unmistakable error, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 236 (2004).

In Damrel v. Brown, 6 Vet. App. 242, 245 (1994), the Court explained that in order for clear and unmistakable error to exist: (1) "[e]ither the correct facts, as they were known at that 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 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question.  See also Russell v. Principi, 3 Vet. App. 310, 313 (1992).

When attempting to raise a claim of CUE, a claimant must describe the alleged error with some degree of specificity, and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error.  See Fugo, 6 Vet. App. at 43.  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 adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE had the same effect as if the corrected decision had been made on the date of the reversed decision.  Id.  

In this case, prior to service connection being granted by a RO decision in June 2007, the RO denied service connection for a psychiatric condition in numerous rating decisions between May 1985 and June 2005.  In addition, the Board denied service connection in a December 1989 decision, and the Court affirmed that Board decision in October 1992.  

The Veteran asserts that there was CUE in the October 1999 and April 2000 rating decisions because VA incorrectly applied 38 U.S.C.§ 5108 and 38 C.F.R. § 3.303 (specifically, 38 C.F.R. § 3.303(b)).  At the time of the rating decisions, under 38 U.S.C. § 5108, in order to reopen a claim which had been previously denied and which was final, the claimant must present new and material evidence.  38 U.S.C. § 5108 (West 1991).  Under 38 C.F.R. § 3.303(b), for the showing of a chronic disease in service, a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time was required.  If chronicity in service was not established, a showing of continuity of symptoms after discharge was required to support the claim.  38 C.F.R. § 3.303(b) (1999).

The Veteran contends that the RO failed to cite and discuss a medical record from the Hampton VA Medical Center dated in May 1999 and in doing so, additionally failed to award a benefit based on a chronic condition which was later noted as such in a 2007 VA examination which was noted as evidence at the time of the grant of service connection.  

In this case, the contentions do not support a finding of CUE.  First, although VA is presumed to be in constructive possession of all VA treatment records, a failure to obtain and consider these records constitutes a failure by VA in its duty to assist, which cannot be grounds for CUE.  See 38 C.F.R. §§ 3.156(c), 20.1403(d); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994) (VA's breach of the duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete rather than an incorrect record.).  Further, ROs are not required to specifically mention in their rating decisions the evidence they considered; instead, it is presumed that they reviewed all relevant evidence in the claims file.  Gonzales v. West, 218 F.3d 1378, 1380 (Fed. Cir. 2000).  

Second, claiming CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE.  Fugo, 6 Vet. App. at 44; see also Russell v. Principi, 3 Vet. App. 310 (1992).  Even if the RO had discussed the May 1999 VA medical report in its October 1999 and April 2000 decisions, the failure to award service connection on this evidence would not show that the regulatory provisions in effect at that time were incorrectly applied.  It was the prerogative of the RO, as the factfinder, to interpret the evidence and draw reasonable inferences from it.  Evans v. McDonald, 27 Vet. App. 180, 187 (2014).  The Veteran and his representative are in effect arguing about the weight provided to the medical report, and disagreements as to how facts are weighed do not constitute CUE.  Russell, 3 Vet. App. at 313-14.

For clarity, the fact that service connection was subsequently granted is not dispositive of CUE in the RO decisions at issue, as any determination concerning CUE must be based on the record and the law that existed at the time of the prior decision, and it remains within the purview of later adjudicators to evaluate the evidence and reach a different judgment.  See Russell, supra; see also Porter v. Brown, 5 Vet. App. 233, 235- 236 (1993) (holding that subsequently developed evidence is not applicable to a claim of clear and unmistakable error).

Based on the foregoing, the Board does not find a basis for CUE warranting the revision or reversal of either the October 1999 and April 2000 ratings decisions.  38 C.F.R. §§ 3.104(a), 3.105(a).  This claim is accordingly denied.

Earlier Effective Date Claim

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  The term "claim" or "application" means 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).

In addition, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability in treatment records.  See Brannon v. West, 12 Vet. App. 32, 35 (1998).

In a June 2007 rating decision, the Veteran was granted service connection for delusional disorder, persecutory type.  The RO assigned an effective date June 21, 2004, the date of receipt of the claim, for this grant of service connection. 

The Veteran contends that the award should go back further than June 2004.  He maintains that he did not receive a previous rating decision, dated February 5, 2003, which denied service connection for a psychiatric disorder.  The Veteran and his representative state that the rating decision was sent to the wrong address, specifically, the wrong zip code, and therefore, the Veteran was not notified of the February 2003 denial by the RO. 

The Board finds that the preponderance of the evidence of record is against an effective date earlier than June 21, 2004, for the award of service connection for delusional disorder, persecutory type. The record shows that the Veteran filed a claim of service connection for a psychiatric disorder in November 2002.  The RO denied the claim in a February 2003 rating decision.  The Veteran was informed of that decision and of his appellate rights in a letter from the RO that month.  The Veteran did not enter a notice of disagreement with the rating decision and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the rating decision.  38 C.F.R. § 3.156(b).  Accordingly, the February 2003 rating decision became final.  38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104(a), 20.1103.  The claim to reopen the issue of entitlement to service connection for a psychiatric disorder was received at the RO on June 21, 2004.  Thus, the already assigned date of June 21, 2004, for the grant of service connection, is the earliest possible effective date.

The Board has considered the Veteran's contention that he did not receive notice of the February 2003 rating decision.  The Board acknowledges that the notice letter and rating decision were mailed to the Veteran using the wrong zip code.  However, the Veteran's address was correct in all aspects other than the zip code, and there is no indication in the Veteran's claims file that the February 12, 2003 notice letter and rating decision (dated February 5, 2003) were returned as undeliverable.  Further, a review of the record shows that a December 2002 VA letter was also sent to the wrong zip code; however, a statement in support of the Veteran's claim, provided by the Veteran, and received at the RO on February 5, 2003, includes both the incorrect zip code which was provided by the Veteran in the statement and acknowledgement, by the Veteran, of the December 2002 VA letter which was sent to the wrong zip code.  Therefore, the Board finds that the presumption of regularity of the administrative process applies to the VA mailing of the February 2003 notice letter and rating decision and that the Veteran did receive them.  See Davis v. Principi, 17 Vet. App. 29, 37 (2003); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).

Based on the forgoing, the preponderance of the evidence is against the claim, there is no doubt to be resolved, and an effective date earlier than June 21, 2004, for the grant of service connection for delusional disorder, persecutory type is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

The October 1999 and April 2000 rating decisions which denied service connection for a psychiatric disorder did not contain CUE; the appeal is denied..

Entitlement to an effective date prior to June 21, 2004, for the grant of entitlement to service connection for delusional disorder, persecutory type, is denied.



____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs