Citation Nr: 19164530 Decision Date: 08/20/19 Archive Date: 08/20/19 DOCKET NO. 16-47 514 DATE: August 20, 2019 ORDER Entitlement to revision of an August 2003 rating decision that denied service connection for a delusional disorder on the basis of clear and unmistakable error (CUE) is granted, and the August 2003 rating decision is revised to reflect a grant of service connection for delusional disorder, effective April 12, 2003. FINDINGS OF FACT 1. The August 2003 rating decision became final because the Veteran did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The regulatory provisions then extant at the time were not correctly applied in the August 2003 rating decision, and the failure to correctly apply the laws and regulations manifestly changed the outcome of that rating decision. CONCLUSION OF LAW The criteria for entitlement to revision of an August 2003 rating decision on the basis of CUE have been met, and the rating decision is revised to reflect a grant of service connection for delusional disorder. 38 U.S.C. § § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, served on active duty in the United States Army from July 2000 to April 2003. This matter comes before the Board of Veterans’ Appeals (Board) following the receipt of the Veteran’s April 2014 motion alleging CUE in an August 2003 RO decision that denied service connection for delusional disorder. In support of the CUE motion, the Veteran maintains that the RO employed the incorrect standard in adjudicating his claim in August 2003 by placing the burden on him to show that his pre-existing psychiatric disability, his delusional disorder, had been worsened by service rather than placing the burden on VA to establish that there his delusional disorder was aggravated by service. He maintains that he was not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attached to show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, on August 20, 2003, the RO notified the Veteran of its decision to deny service connection for delusional disorder. On November 1, 2004, the Veteran submitted a Notice of Disagreement (NOD) with the August 20, 2003, rating decision. The RO notified the Veteran that the NOD was untimely and construed the correspondence as an application to reopen the previously denied service connection claim. New and material evidence was not received within one year after the August 2003 rating decision. For these reasons, the August 2003 rating decision became final. 38 U.S.C. § § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. 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 error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. In its August 2003 rating decision, the RO denied service connection for delusional disorder. The RO found that the disorder, which was not noted upon entrance into service, existed prior to service and there was no evidence that the condition permanently worsened as a result of service. The RO noted that medical records show that the Veteran had been diagnosed with attention deficit disorder at eight years old. The RO further noted that a Physical Evaluation Board report indicated that the Veteran was unfit for service, due to delusional disorder, which was a natural progression of a psychiatric disorder that existed prior to service. The Board finds that the RO incorrectly applied the law in existence in August 2003, the error was undebatable based on the evidence of record, and that but for the error, service connection for delusional disorder would have been granted. Critically, where, as here, a psychiatric disorder, to include delusional disorder, was not noted upon entrance into service, the law provided that: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § § 1111. Because of Wagner, we now know that the presumption may be rebutted only with clear and unmistakable evidence of both preexistence and no aggravation. 370 F.3d at 1096. Effective July 16, 2003, VA invalidated this version of the regulation, holding that “[t]o rebut the presumption of sound condition under 38 U.S.C. § 1111, [VA] must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.” See VA Gen. Coun. Prec. 3-2003 (July 16, 2003). Initially, the Board finds that the RO errored in failing to address the presumption of soundness. The error was undebatable based on the evidence then of record, namely the Report of Medical Examination upon entrance into service, does not note any psychiatric problems. The Board further finds that but for the error, service connection for delusional disorder would have been granted. If the RO applied the presumption of soundness, the burden should have shifted to VA to rebut the presumption by clear and unmistakable evidence both that the disorder existed prior to service and that the disorder was not aggravated by service. As the Veteran acknowledges, the evidence extant at the time of the August 2003 rating decision indicates that the disorder clearly preexisted service; however, the evidence does not indicate that the disorder clearly was not aggravated by service. At a minimum, the disorder was not noted during medical evaluation upon entrance into service but during service, the disorder became so severe as to result in the Veteran’s separation from service. Thus, if the RO applied the correct law, that is, 38 U.S.C. § 1111, and Gen. Coun. Prec. 3-2003 (July 16, 2003), the evidence of record would not have rebutted the presumption of soundness. Absent this clear error, service connection would have been granted. Consequently, the Veteran’s motion to revise the August 2003 rating decision to reflect a grant of service connection for delusional disorder is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua Castillo, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.