Citation Nr: 20029314 Decision Date: 04/27/20 Archive Date: 04/27/20 DOCKET NO. 08-20 090 DATE: April 27, 2020 ORDER The motion for revision or reversal of the March 1986 rating decision that denied service connection for a neurologic disorder on the basis of clear and unmistakable error (CUE) is denied. Service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. In a final rating decision issued in March 1986, the Agency of Original Jurisdiction (AOJ) denied service connection for a neurologic disorder. 2. The March 1986 rating decision was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome of the matter at issue. 3. Resolving all doubt in his favor, the Veteran has a current diagnosis of PTSD based on an in-service stressor related to his fear of hostile military or terrorist activity. CONCLUSIONS OF LAW 1. The March 1986 rating decision that denied service connection for a neurologic disorder is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1985). 2. The criteria for revision or reversal of the March 1986 decision that denied service connection for a neurologic disorder on the basis of CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 2. The criteria to for service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service from September 1977 to September 1981. This matter comes before the Board of Veterans’ Appeals on appeal from rating decisions issued in February 2007 and March 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In regard to his claim for service connection for PTSD, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2014, such issue was remanded for additional development and, in June 2017, the Board, as relevant, denied service connection for PTSD. The Veteran subsequently appealed such denial to the United States Court of Appeals for Veterans Claims (Court) and, in an August 2019 Memorandum Decision, the Court vacated and remanded the claim to the Board for further consideration. The June 2017 decision also remanded a number of claims to the AOJ; however, as such have not been recertified, the Board declines jurisdiction over them at the present time. The Veteran has not requested a Board hearing in regard to his CUE claim. Further, as will be discussed herein, his September 2008 motion for revision or reversal alleged CUE in the March 1986 rating decision on two bases: (1) the AOJ failed in its duty to assist by not providing him with a VA examination and (2) did not consider relevant evidence consisting of private treatment records from Drs. Balle and Reed that were on file at the time of the issuance of such decision. Consequently, such allegations of CUE were addressed by the AOJ and, as the AOJ found that revision or reversal of the March 1986 rating decision was not warranted on such bases, the Veteran appealed such matter to the Board. However, in December 2018 and November 2019, his representative advanced new theories of CUE in such rating decision, to include the AOJ’s alleged failure to consider relevant evidence demonstrating a prescription of high doses of corticosteroids as noted in a 1985 medical history, failure to request relevant records, and failure to provide adequate notice. In this regard, the Veteran and his representative are advised that each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Here, the RO has not had an opportunity to address these additional theories of CUE because they were not raised until after the RO completed review of the Veteran’s original CUE argument. The Veteran is advised that these additional theories of CUE must be submitted to, and reviewed by, the RO before the Board has jurisdiction to address them. 1. Whether the March 1986 rating decision that denied service connection for a neurologic disorder should be reversed or revised on the basis of CUE. As an initial matter, the Board notes that, in the March 2016 rating decision and December 2018 statement of the case, the AOJ referred to a “February 25, 1985 rating decision.” However, such is clearly a typographical error as there is no such rating decision. Rather, it is clear that the Veteran has alleged CUE in a February 25, 1986 rating decision, which was issued in March 1986. In this regard, the Board has utilized the standard practice of referring to the date of the notification letter as the date of the rating decision and will use the designation of a “March 1986 rating decision” to refer to the rating decision being collaterally attacked by the Veteran’s instant CUE argument. 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). In a February 1985 rating decision, the AOJ considered the Veteran’s service treatment records and private treatment records. In this regard, the AOJ found that his service treatment records were entirely negative for any neurologic abnormalities. Rather, he was hospitalized in May 1985 after awakening with right-sided weakness. At such time, it was noted that the Veteran had previously had a flu-like illness nine days earlier. Neurologic consult resulted in the opinion that such represented demyelinating disease; however, tests did not confirm such. There was no prior history of transient neurologic deficits. The final diagnosis of was right facial paralysis, right side hemiparesis, and rule out multiple sclerosis. The AOJ further observed that the Veteran received steroid treatment in June 1985 and made some improvement in his right sided symptoms. He was hospitalized for recurrence of such symptoms in July 1985. The final diagnosis was question of demyelinating disease without substantiation on lab testing. An October 1985 emergency room note reported nearly complete paralysis of all four extremities, but evoked response and spine puncture tests did not confirm demyelinating disease. Based on the foregoing, the AOJ found that recent medical records showed that the Veteran had some sort of neurologic disorder with a question of demyelinating disease without substantiation on lab testing. However, as there was no evidence of such during the Veteran’s active service or in the one year presumptive period, and a diagnosis of multiple sclerosis had not been established in order to consider a seven year presumptive period, the AOJ denied service connection for a neurological disorder. In March 1986, the Veteran was advised of the rating decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. In this regard, while the Veteran’s service personnel records were received in 2006, such are irrelevant to his claim for service connection for a neurological disorder. Therefore, the March 1986 rating decision is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1985). 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. As a threshold matter, the Board finds that the arguments advanced by the Veteran that (1) the AOJ failed in its duty to assist by not providing him with a VA examination and (2) did not consider relevant evidence consisting of private treatment records from Drs. Balle and Reed that were on file at the time of the issuance of such decision allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of such CUE claim. In this regard, at the time of the March 1986 rating decision, VA regulations provided that service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran’s service records, or for which he seeks a service connection must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 331 (1982); 38 C.F.R. § 3.303(a) (1985). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharged is required to support the claim. 38 U.S.C. § 331 (1982); 38 C.F.R. § 3.303(b) (1985). The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination. 38 U.S.C. § 331; 38 C.F.R. § 3.304(c) (1985). A chronic, tropical, or prisoner of war related disease listed in VA Regulation 1309 will be considered to have been incurred in service under the circumstances outlined in this paragraph even though there is no evidence of such disease during the period of service. 38 U.S.C. § 331 (1982); 38 C.F.R. § 3.307(a). The veteran must have served 90 days or more during a war period of after December 31, 1946. The requirement of 90 days’ service means active, continuous service within or extending into or beyond a war period, or which began before and extended beyond December 31, 1946. 38 U.S.C. § 331 (1982); 38 C.F.R. § 3.307(a)(1). For the chronic disease of multiple sclerosis, such must have become manifest to a degree of 10 percent or more within seven years. 38 U.S.C. § 331 (1982); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). With regard to the Veteran’s first allegation of CUE, i.e., that the AOJ failed in its duty to assist by not providing him with a VA examination, the law is clear that a breach of the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Furthermore, to the extent that the Veteran’s representative attempted to make such argument in the context of an alleged failure to correctly apply the law in existence at the time of the March 1986 rating decision, i.e., a failure to comply with 38 C.F.R. § 3.304(c), the Board likewise finds such argument to be without merit. As noted previously, 38 C.F.R. § 3.304(c), as in existence at the time of the March 1986 rating decision, provided that the development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination. In this regard, the Veteran’s representative argues that, as the evidence of record at the time of the March 1986 rating decision included a suggestion of a possibility of multiple sclerosis or demyelinating disease and a May 1985 record from Dr. Reed indicated that “the most sensitive tests that we have for picking up subtle demyelinating lesions is nuclear magnetic resonance,” VA was required to provide the Veteran with an MRI and examination under 38 C.F.R. § 3.304(c). However, such argument is tantamount to disagreement with how the facts were weighed or evaluated at the time of the March 1986 rating decision. Eddy v. Brown, 9 Vet. App. 52, 57 (1996). Specifically, based on the evidence of record at the time of the rating decision, which included numerous work ups by the Veteran’s private physicians, to include blood work, an EEG, and a CT scan, but did not result in a definitive diagnosis of multiple sclerosis, the adjudicator implicitly found that the evidence of record was sufficient for adjudication and no further development of evidence was necessary, which is consistent with 38 C.F.R. § 3.304(c). In this regard, “[i]t is the prerogative of the factfinder...to interpret the evidence and draw reasonable inferences from it.” Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). Therefore, the Board finds that such allegation of CUE is without merit. With regard to the Veteran’s second allegation of CUE, i.e., that the AOJ did not consider relevant evidence consisting of private treatment records from Drs. Balle and Reed that were on file at the time of the issuance of the March 1986 rating decision, the Board notes that, prior to the 1990 effective date of what is now 38 U.S.C. § 5104(b), AOJs were not required to set forth in detail the factual bases for their decisions. Recognizing this, the Federal Circuit has explained that, in the absence of evidence to the contrary, the AOJ is presumed to have made the requisite findings. See Natali v. Principi, 375 F.3d 1375, 1380–81 (Fed.Cir.2004); Pierce v. Principi, 240 F.3d at 1355–56. In determining whether CUE exists in such a case, the Board must examine the evidence of record; assume that the AOJ was aware of and duly considered extant law; and form a conclusion as to whether the AOJ decision was supportable in light of the evidence and law that then existed. Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005). Silence in a final AOJ decision made before 1990 cannot be taken as showing a failure to consider evidence of record. Eddy, 9 Vet. App. at 58. In the instant case, records from both Dr. Reed and Dr. Balle are of record and, in fact, were cited in the March 1986 rating decision. Further, while Dr. Balle indicated multiple diagnoses, to include multiple sclerosis, in May 1985, the remainder of the evidence of record, to include a contemporaneous neurologic consult with diagnostic testing, did not show such a diagnosis. Consequently, the Veteran’s argument is again tantamount to disagreement with how the facts were weighed or evaluated at the time of the March 1986 rating decision. Eddy, supra. As noted above, the “[i]t is the prerogative of the factfinder...to interpret the evidence and draw reasonable inferences from it.” Evans, 27 Vet. App. at 187 (citing Kahana, 24 Vet. App. at 435; Gilbert, 1 Vet. App. at 52). Consequently, such argument is likewise without merit. Furthermore, to the extent that the Veteran’s representative has cited to evidence that was developed after the issuance of the March 1986 rating decision in support of the aforementioned arguments, to include a June 2016 opinion from Dr. Bash in which he diagnoses multiple sclerosis and states that the failure to request an MRI and examination constitutes “clear and unmistakable error from a medical perspective,” the Board is precluded from considering such evidence in the adjudication of the instant CUE claim as such determination must be based on the laws in existence at the time and the facts as they were known at the time. Therefore, the Board cannot conclude that the evidence of record in March 1986 compelled the conclusion, to which reasonable minds could not differ, that the Veteran’s claim for service connection for a neurological disorder must have been granted. See, e.g., King at 441 (noting that “a manifest change in the outcome of the adjudication means that, absent the alleged [CUE], the benefit sought would have been granted at the outset”) (emphasis added). Consequently, the Board finds that the March 1986 rating decision was consistent with, and reasonably supported by, the evidence then of record, correctly applied existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome of the matter at issue. Thus, revision or reversal of such rating decision on the basis of CUE is not warranted and the Veteran’s motion must be denied. 2. Entitlement to service connection for PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Specific to a claim for service connection for PTSD, such requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). As relevant to the instant case, if a stressor claimed by a Veteran is related to the Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). In the June 2017 decision, the Board found that the Veteran’s reported stressor of being the “first or second man down” in simulated training exercises, which is discussed at length therein, did not relate to a fear of hostile military or terrorist activity as contemplated by the aforementioned regulation and, thus, he did not have a diagnosis of PTSD based on a verified in-service stressor. However, in the August 2019 memorandum decision, the Court found that the Board failed to provide an adequate statement of reasons and bases for such determination. In this regard, the Court cited portions of the Federal Register relevant to the interpretation of the meaning of “fear of hostile military or terrorist activity.” Specifically, the Court acknowledged the Board’s citation to the Federal Register, which stated the “rule is intended to apply only when the veteran’s service is proximate in time and place to the traumatic event to which the veteran has responded with intense fear, helplessness, or horror,” but found that the Board erred by finding that a “traumatic event” requires actual combat or hostilities or excludes training exercises. 75 Fed. Reg. 39,843 (July 13, 2010). In this regard, the Court noted that the Federal Register stated “[t]he regulation is not limited to events or circumstances perpetrated by a foreign enemy.” Id. Upon further review, the Board observes that additional guidance from the Federal Register suggests that training exercises may constitute the type of stressor contemplated by the phrase “fear of hostile military or terrorist activity.” Specifically, comments accompanying the publication of the amendments to section 3.304(f) indicate that the rule “has no geographic requirement and is not limited to service in a combat zone or on land. Rather, it applies to all persons who served in active military, naval or air service.” The comments further indicate that “[t]he regulation is not limited to events or circumstances perpetrated by a foreign enemy,” nor is it limited to “any particular class of individuals,” including military personnel. 75 Fed. Reg. 39,843-01, 39,844 (2010). Consequently, the Board resolves doubt in the Veteran’s favor and finds that his Veteran’s reported stressor of being the “first or second man down” in simulated training exercises, which is consistent with the circumstances of his service as a radio teletype operator with the 32nd Armored Division in Germany from February 1980 to September 1981, is related to his fear of hostile military or terrorist activity. Further, as discussed below, he has a diagnosis of PTSD based on such reported in-service stressor. Specifically, in a December 2014 VA treatment record, the Veteran was diagnosed with PTSD related to his military-related stressor of fear of death due to a possible war with Russia. In March 2019, the Veteran’s private psychologist, Dr. C.T., stated that the Veteran’s PTSD is most likely related to his military experiences, to include his participation in training exercises that indicated that his station would be the first or second station hit in the event of a war with Russia. Finally, at a March 2019 VA examination, a diagnosis of PTSD was rendered and the examiner indicated that such was based on the Veteran’s reported in-service stressors related to his repeated participation in preparation for a potential war with Russia. In this regard, it was noted that the preparation exercises indicated a strong likelihood that the Veteran’s communications station would be the first or second station hit in the event of a war, meaning he would die. The examiner further found that the Veteran’s stressor was related to his fear of hostile military or terrorist activity and was adequate to support a diagnosis of PTSD. Therefore, based on the foregoing, the Board resolves all doubt in the Veteran’s favor and finds that the Veteran has a current diagnosis of PTSD based on an in-service stressor related to his fear of hostile military or terrorist activity. Therefore, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Wozniak, Joshua 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.