Citation Nr: 20040192 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 20-18 707 DATE: June 11, 2020 ORDER Due to a clear and unmistakable error (CUE), a March 25, 2019, decision of the Board of Veterans’ Appeals (Board) is revised to reflect that new and material evidence was not required to reopen an April 1999 claim for service connection for paranoid schizophrenia and that that claim was being reconsidered pursuant to 38 C.F.R. § 3.156(c)(1). FINDING OF FACT Relevant service records relating to a claim for service connection for a psychiatric disorder, diagnosed as schizophrenia, were of record at the time of the March 2019 Board decision; they existed but had not been associated with the claims file when the Department of Veterans Affairs (VA) first decided the Veteran’s claim for service connection in June 2000. CONCLUSION OF LAW In the March 25, 2019, decision, the Board’s determination that new and material evidence was required to reopen a claim for service connection for a psychiatric disability is clearly and unmistakably erroneous and is revised to reflect that the April 1999 claim for service connection is reconsidered. 38 U.S.C. § 7111; 38 C.F.R. §§ 3.156(c), 20.1400-1411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to January 1990. This matter is currently before the Board on its own April 2020 motion to revise a March 2019 Board decision on the basis of clear and unmistakable error. A prior final Board decision must be reversed or revised where evidence establishes that there is clear and unmistakable error in the 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 clear and unmistakable error, except for those decisions which have been appealed to and decided by a court of competent jurisdiction and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The Board may undertake a review on its own motion. See 38 C.F.R. § 20.1407. When this occurs, 60-day notice must be provided to allow for a response. Id. A letter regarding the current motion before the Board was sent to the Veteran and his representative in April 2020. The Veteran responded that he had no additional evidence or argument to submit and asked for the Board’s expeditious handling of the matter. Based on such, the Board is undertaking its review despite the fact that the Veteran has additional time to respond. Motions for review of prior Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. Clear and unmistakable error 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 clear and unmistakable error 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 clear and unmistakable error, 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. Clear and unmistakable error is established when the following conditions are met. First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Second, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.” Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Finally, the error must have “manifestly changed the outcome” of the decision being attacked on the basis of clear and unmistakable error at the time the decision was rendered. Id. at 313-314, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting “manifestly changed the outcome” language in Russell). Examples of situations that are not clear and unmistakable error 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). Clear and unmistakable error 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). Analysis In a March 25, 2019, decision, Board determined that a June 2000 rating decision that denied the Veteran’s claim for service connection for paranoid schizophrenia was final. It found that new and material evidence had been received since the time the June 2000 decision became final, the Board determined that the claim could be reopened. The Board then granted the claim for service connection for a psychiatric disorder. A VA regional office effectuated that decision and assigned an effective date for service connection that corresponded with the date that the Veteran submitted his claim for service connection in September 2011. The Veteran then challenged that effective date, but that appeal is not the subject of the instant decision. The law in effect at the time of the March 2019 Board decision held that, in general, for appeals continued in the legacy appeal system, such as the appeal before the Board at that time, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). A decision by the Regional Office becomes final if a claimant does not appeal the decision within a year of being notified of the decision and if no new and material evidence has been received within a year of the claimant’s notification of the decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to the general rule that previously denied decisions may not thereafter be reopened and allowed is found in 38 U.S.C. § 5108 and 38 C.F.R. § 3.156(a). These sections provide that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board in its March 2019 decision found that new and material evidence had been received since the time of the unappealed June 2000 rating decision and therefore reopened the claim. However, the Board did not address whether an exception to the general provisions for reopening were met at that time. Namely, if at any time after VA issues a decision on a claim VA receives or associates with the claims file “relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.” 38 C.F.R. § 3.156(c)(1). These service records explicitly include those records that “are related to a claimed in-service event, injury, or disease.” 38 C.F.R. § 3.156(c)(1)(i). However, if those service records could not have been obtained when VA decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records, the exception set forth at subpart (c)(1) are inapplicable. 38 C.F.R. § 3.156(c)(2). The question currently before is whether the Board’s March 2019 applied the appropriate regulations and, if it did not, did such an error result in a manifestly different outcome. The Board now finds that it clearly and unmistakably erred in its application of the regulations governing prior final regional office decisions and that the error did, in fact, result in a manifestly different outcome than what would have occurred if the correct standards been applied. The record reflects that the Veteran had filed a claim for service connection for paranoid schizophrenia in April 1999. That claim was denied in a June 2000 rating decision to which the Veteran did not submit a notice of disagreement. There is no evidence that VA received any pertinent evidence relating to the claim in the year following the Veteran’s notification of that denial. As such, the Board cannot say that the Board’s March 2019 decision contains any clear error in determining that that June 2000 decision became final. It is useful to describe the evidence considered in the June 2000 rating decision to determine which of the subparts of 38 C.F.R. § 3.156 might be applicable to the Veteran’s subsequent claim for service connection for a psychiatric disability in September 2011. The 2000 rating decision included a description of the evidence of record that was before VA at the time of a January 2000 decision that did not become final as well as substantial additional psychiatric treatment records from after the Veteran’s period of service. The January 2000 rating decision indicated the evidence of record was comprised of the Veteran’s claims form, copies of extracts of service medical and personnel records from 1989 to 1991, and a letter asking the Veteran to provide additional evidence to support a well-grounded claim for service connection for paranoid schizophrenia. Although this evidence does include copies of a few pages of service treatment records, the record at that time was remarkably slim. The record did not include, for example, a January 1990 memorandum from the Department of Army documenting the Veteran’s symptoms of worsening concentration and feelings of depression. The record before VA in June 2000 also did not include a January 1990 report of mental status evaluation and General Counseling Form in which further reports of increasing psychiatric symptoms were documented. These records were submitted by the Veteran’s representative in December 2013. Although the Board in its March 2019 decision determined that new and material evidence had been received sufficient to reopen a claim for service connection for a psychiatric disability, the Board now finds that the decision clearly and unmistakably erred by failing to consider the provisions of 38 C.F.R. § 3.156(c)(1). It is undebatable that the additional service records received in December 2013 were relevant to the Veteran’s claim for service connection and documented increasing psychiatric symptoms during service. Although they existed at the time of the June 2000 rating decision, they were not included in the claims file when VA decided the Veteran’s claim. The Board therefore finds that there is no debate that the March 2019 decision clearly and unmistakably erred in its failure to apply 38 C.F.R. § 3.156(c)(1) and recognizing that the exception to the requirement for new and material evidence had been triggered. To revise the March 2019 decision, then, the Board must determine whether this error resulted in a manifestly different outcome. The Board finds that it did. The law in effect at the time of the March 2019 decision stated that the effective date for a reopened claim based on new and material evidence would be the latter of the date of receipt of the new claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(g)(1)(ii). A determination from the Board that new and material evidence was required and the characterization of the new claim as a claim for reopening would necessarily preclude an effective date for service connection earlier than the date of the claim to reopen. However, as explained above, when the provisions of 38 C.F.R. § 3.156(c)(1) are triggered, the original claim would be reconsidered. Reconsidering the claim could allow for an effective date for an award of benefits based on newly discovered service department records that were previously unavailable dating back to the date of original claim. Mayhue v. Shinseki, 24 Vet. App. 273, 277 (2011). The Board finds now that the downstream issue of the effective date of the grant of service connection would be manifestly different had the Board in March 2019 appropriately applied 38 C.F.R. § 3.156(c) rather than 38 C.F.R. § 3.156(a). As such, the Board finds that the criteria for revision of the March 2019 on the basis of CUE have been met. That decision is revised to reflect that new and material evidence was not required to reopen an April 1999 claim for paranoid schizophrenia and that that claim was being reconsidered pursuant to 38 C.F.R. § 3.156(c)(1). While the Board does find that the criteria to revise that decision have been met, the Board does not have jurisdiction to adjudicate in the first instance the downstream issue of the effective date of the grant of service connection. See Grantham v. Brown, 114 F.3d 1156, 1158-1159 (Fed. Cir. 1997). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, Associate 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.