Citation Nr: 19117397 Decision Date: 03/08/19 Archive Date: 03/08/19 DOCKET NO. 18-51 955 DATE: March 8, 2019 ORDER The May 25, 1971 Board of Veterans’ Appeals (Board) decision, having been found to be clearly and unmistakably erroneous in denying service connection for nervous disorder, is revised to reflect a grant of service connection for psychosis. FINDINGS OF FACT 1. In a final decision dated May 25, 1971, the Board denied service connection for nervous condition. 2. The May 25, 1971 Board decision contained legal and factual errors in failing to apply relevant law at the time so as to not constitute a reasonable exercise of rating judgment. 3. But for the legal and factual errors in the May 25, 1971 Board decision, the outcome would have been manifestly different and service connection for psychosis would have been granted. CONCLUSION OF LAW The May 25, 1971 Board decision denying service connection for nervous condition was clearly and unmistakably erroneous, and is revised to grant service connection for psychosis. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty service from March 1963 to February 1965. He had subsequent service for active duty for training from July 28, 1967 to September 1967. This matter is currently before the Board on the Board’s own November 2018 motion for revision or reversal on the grounds of clear and unmistakable error (CUE) in the May 25, 1971 Board decision that denied service connection for a nervous condition. Applicable Caselaw, Statutory, and Regulatory Provisions A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. A decision by the Board is subject to revision on the grounds CUE. 38 U.S.C. § 7111(a) (2012). Review to determine whether clear and unmistakable error exists in a final decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 U.S.C. § 7111(c) (2012); 38 C.F.R. § 20.1400 (2018). The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either 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 that 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision. 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Discussion The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). In the present case, the Board, on its own motion, alleges CUE in a May 25, 1971 Board decision that denied service connection for nervous condition. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). In the May 25, 1971 decision, the Board made the following findings: (a) the Veteran was not treated for a nervous or psychiatric disorder during his period of active duty from March 1963 to February 1965; (b) although the Veteran was treated for anxiety and depressive reaction in February 1966, he was not treated for a psychotic disorder within one year after discharge; (c) The Veteran had active duty for training from July 30, 1967 to August 11, 1967; (d) At 2 am on July 31, 1967, the Veteran was afforded medical treatment for a nervous condition as he became frightened and confused at the time of reporting to duty; (e) the Veteran was under medical care for his nervous condition from July 31, 1967, to and after August 11, 1967, at which time his active reserve status was terminated; and, (f) the Veteran’s nervous disease, which preexisted entry on active duty for training on July 30, 1967, was not aggravated during such active reserve service. Upon review, the Board find two critical errors in the Board’s May 1971 decision. First, official military personnel records at the time showed that the Veteran’s period of ACDUTRA was from July 28, 1967 to September 1967, namely, two days earlier than noted by the Board. This is significant, given the Board’s finding that the nervous disorder preexisted service and incurred in the course of the Veteran’s travel to duty. Additionally, the Board concluded that the Veteran’s psychiatric treatment was not for psychotic disorder and that manifestation of psychotic disorder was not within a year of discharge of active duty service in 1956. This conclusion is factually inconsistent with the available evidence of record at the time of the May 1971 decision. A review of the medical Board treatment that was relied upon by the Board at the time indicated that the diagnosis was not in the line of duty indicating that the approximate date of origin was “unknown,” existed prior to duty, and was not aggravated. Though, the medical professional further noted that the Veteran’s military history was “Not clear” and it seemed from a previous report that he reported for the Reserve training on July 31, 1967, at 2 am after driving all night from New York City. It further noted that it seemed that it was upon his arrival that he became confused and frightened. More importantly, the medical professional rendered a diagnosis of psychosis, psychotic reaction, marked in accordance with VA Code 9210. The Board notes that the Veteran’s psychotic reaction was recognized as a psychotic disorder under 38 C.F.R. §§ 3.309(a), 4.132 (1961) at the time of the Board’s May 1971 decision. Here, the Board listed the wrong service dates, and given the medical board notation that symptoms started during travel to service and or upon arrival, these two extra days officially recognized as dates of service are significant. Furthermore, the Board only considered whether psychosis was shown within a year of discharge from active duty in February 1965, but failed to consider whether psychosis was diagnosed during active duty for training, despite a clear diagnosis of a psychotic disorder for the first time during ACDUTRA. As the recitation of the facts in the Board’s May 25, 1971, decision completely omit the in-service diagnosis of psychosis, psychotic reaction, marked in accordance with VA Code 9210, the Board now finds that but for this omission of the correct facts, as they were known at that time, service connection for psychosis would have been granted. Significantly, the Board specifically concluded that the Veteran only received treatment for anxiety and depression but not for psychosis prior to his active duty for training. As such, the conclusion that a psychiatric disorder of nervous condition preexisted service does not overcome the failure to discuss a documented diagnosis of psychosis during that period of service. In addition, the Board notes that ever since that time and to the present, the Veteran is diagnosed with psychosis, to include paranoid schizophrenia. Thus, after considering the evidence of record at the time of the May 25, 1971 Board decision, the Board finds clear legal and factual errors as the statutory and regulatory provisions extant at the time were not applied, specifically regarding service connection for psychosis and the conclusion that symptoms of nervous disorder began during travel to service, yet, relying upon the wrong service dates. Moreover, had the legal and factual errors discussed above not been committed, the May 25, 1971 Board decision manifestly would have granted service connection for psychosis that was first diagnosed during a qualifying period of service. In sum, the Board concludes that the May 25, 1971 Board decision is clearly and unmistakably erroneous; therefore, the May 25, 1971 Board decision should be revised, resulting in a grant of service connection for psychosis. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1402-1404. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel