Citation Nr: 18129727 Decision Date: 08/27/18 Archive Date: 08/27/18 DOCKET NO. 09-20 950 DATE: August 27, 2018 ORDER The motion alleging clear and unmistakable error (CUE) in the December 1979 rating decision and seeking an effective date of April 10, 1979, for the grant of service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder (MDD), is granted. The claim of entitlement to an effective date earlier than January 31, 2008, for the award of service connection for an acquired psychiatric disorder is dismissed as moot. FINDINGS OF FACT 1. The December 1979 adjudication of the Veteran’s claim of entitlement to service connection for organic brain syndrome contained clear and unmistakable error (CUE) in that the correct facts were not before the adjudicator and it is undebatable that, had the error not occurred, entitlement to service connection for an acquired psychiatric disorder would have been granted at that time. 2. The Veteran filed a claim on July 11, 1979, within one year of his discharge from service, seeking entitlement to service connection for organic brain syndrome (based on psychiatric symptoms diagnosed as depression at the time), and this claim would have, but for CUE, resulted in the grant of service connection for an acquired psychiatric disorder in December 1979. CONCLUSIONS OF LAW 1. The RO’s December 1979 decision which failed to grant entitlement to service connection for an acquired psychiatric disorder was clearly and unmistakably erroneous. 38 U.S.C. §§ 5109A, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.105 (2017). 2. An effective date of April 10, 1979, is assigned for the award of service connection for an acquired psychiatric disorder diagnosed as MDD. 38 C.F.R. § 3.400. 3. The claim of entitlement to an effective date earlier than January 31, 2008, for the grant of service connection for an acquired psychiatric disorder is dismissed as moot, because there remains no matter in controversy after granting the motion alleging CUE in the December 1979 rating decision. 38 U.S.C. §§ 1155, 7104(a), 7105(d)(5) (West 2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1977 to April 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned in a September 2017 hearing held via videoconference. The record contains a transcript of the hearing. At the September 2017 Board hearing, the Veteran set forth his argument regarding entitlement to an earlier effective date for service connection for an acquired psychiatric disorder and also his theory of entitlement to an earlier effective date. Specifically, the Veteran, through his representatives, argued that there was clear and unmistakable error (CUE) in the December 1979 rating decision. The Veteran had previously raised this issue in his May 2009 VA Form 9 and requested the theory be addressed by the Board in his July 2013 Notice of Disagreement. The RO initially adjudicated the issue in a November 2015 Statement of the Case. Because the CUE claim was raised before the RO and has been extensively argued, the Veteran will not be prejudiced by the Board’s disposition of the claim. The issue is properly before the Board in this pending appeal. 1. Whether there was CUE in the December 1979 rating decision failing to grant service connection for an acquired psychiatric disorder The Veteran claims that the RO committed CUE in its December 1979 rating decision in failing to grant entitlement to service connection for an acquired psychiatric disorder. His claim of CUE is based on the theory that the correct facts, as they were known at the time, were not before the adjudicator and, if the adjudicator had considered the known facts, the claim would have been granted. Clear and unmistakable error (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.” 38 C.F.R. § 20.1403. Even when 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). The Court has established a three-prong test to determine whether there is CUE in an RO decision: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory-regulatory provisions extant at that time were not correctly applied; (2) the error must be “undebatable” and of the sort which, if it had 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 adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); 38 C.F.R. § 20.1403; Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc). VA’s failure to comply with the duty to assist cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(2); see also Cook v. Principi, 318 F.3d 1334, 1344–45 (Fed. Cir. 2002) (“[A] breach of the duty to assist cannot constitute CUE.”). Likewise, an allegation that the adjudicator improperly weighted or evaluated evidence cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(3); see also Damrel, 6 Vet. App. at 246. In July 1979, the Veteran filed a claim of entitlement to service connection for acute organic brain syndrome based on an in-service diagnosis of that condition with continuing symptoms including acute depression. See June 1979 Private Treatment Records. The Veteran underwent a neurological examination for rating purposes in September 1979. The examiner noted the history of idiopathic organic brain syndrome characterized by sudden onset of confusion followed by loss of consciousness. At the exam, the Veteran reported a recent recurrence of the problem (in July 1979) with a sudden loss of consciousness. Importantly, the examiner noted that the Veteran’s “main complaint at [that] time [was] a feeling of anxiety and depression which he has experienced over the past several months, in fact, they may even extend back to the initial episode in November 1978.” The evidence clearly indicates, therefore, that the Veteran sought service connection for symptoms including anxiety and depression. The fact that he attributed the symptoms to organic brain syndrome does not limit his claim, rather his claim clearly encompassed the symptoms he had rather than his lay diagnosis of those symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 12-13 (2009). The physician who conducted the September 1979 neurological examination rendered a possible diagnosis of a “psychomotor seizure disorder”, but also noted the need for referral to psychiatry service “for evaluation of persistent feelings of anxiety and depression and irritability over the past several months” because those feelings “could represent a psychiatric disorder.” As noted, the available private treatment records did, in fact, contain a diagnosis of a psychiatric disorder, specifically depression. See June 1979 Private Treatment Records (diagnosing acute depression”); June 1979 VA Treatment Records (diagnosing organic brain syndrome “by history” as well as “depression”); July 1979 VA Neuropsychology Consult (“Personality testing reveals emotional dysfunction in the form of mild depression.”). The above evidence is unequivocal and reasonable minds could only conclude that the Veteran had an acquired psychiatric disorder that was related to his active service. The December 1979 rating decision, however, contains no discussion of the symptoms of anxiety, depression, and irritability, nor of the medical records documenting those symptoms, the diagnoses of depression, and the link to the Veteran’s active service. The three-prong test for establishing CUE is met in this case. The correct facts, as they were known at the time, were not before the adjudicator, particularly the private medical records and VA treatment records from June and July 1979 that were of record at the time but were not discussed at all in the rating decision. It is undebatable that those records, which should have been before the adjudicator, established a diagnosis of depression with a continuity of symptoms since his active service (specifically, at least since his return from deployment in Berlin in 1978) as well as a connection to the episode of acute organic brain syndrome. That diagnosis and linkage to service established the Veteran’s entitlement to service connection for an acquired psychiatric disorder. See 38 C.F.R. §§ 3.303 and 3.304. And, finally, these determinations are based on the record and law that existed at the time. 38 C.F.R. § 20.1403. The motion alleging CUE in the December 1979 rating decision and seeking an effective date of April 10, 1979, for the grant of service connection for an acquired psychiatric disorder is granted in full. 2. Entitlement to an effective date earlier than January 31, 2008, for the award of service connection for an acquired psychiatric disorder Because the Board finds that the original December 1979 rating decision contained CUE and the relief the Veteran seeks has been granted under that theory, the separate claim of entitlement to an earlier effective date for service connection for an acquired psychiatric disorder is rendered moot. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). This dismissal is without prejudice to the Veteran’s right to appeal the rating decision implementing the grant of CUE, including the assignment of a disability rating during the newly relevant time period (1979 to 2008). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kerry Hubers, Counsel