Citation Nr: 20052914 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 17-49 874 DATE: August 10, 2020 ORDER Revision based on clear and unmistakable error (CUE) of the May 2003 rating decision which granted service connection for generalized anxiety disorder with an effective date of August 4, 1998 is denied. FINDING OF FACT 1. The October 1990 rating decision is final as the Veteran did not appeal, nor submit new and material evidence within one year of rating decision. 2. In August 1994, VA received a request to reopen claim. 3. The May 1995 rating decision denying reopening was timely appealed. 4. The September 1997 Board decision denied the reopening of the claim. 5. In October 1997, the Veteran submitted a motion to reconsider the September 1997 Board decision. 6. In December 1997, the Board denied the Veteran’s motion to reconsider. 7. Prior to August 4, 1998, the Veteran did not file an appeal with the Court of Veterans’ Appeals (CAVC) and the Veteran did not submit evidence to the Regional Office (RO) of Jurisdiction. 8. In October 2003, the Board denied the claim to reverse or revise an October 1990 rating decision and denied an effective date earlier than August 4, 1998 for service connection for an acquired psychiatric disorder. An appeal to the Court of Appeals for Veterans Claims was filed but was withdrawn. 9. On the merits, the Veteran’s assertion that the October 1990 rating decision should have adjudicated a claim of service connection for an anxiety and depression disability was simply a disagreement with the weighing of the evidence and the factual determinations the RO reached. CONCLUSION OF LAW The criteria for revision based on clear and unmistakable error (CUE) of the May 2003 rating decision which granted service connection for generalized anxiety disorder with an effective date of August 4, 1998 have not been met. 38 U.S.C. §§ 5107, 5110 (1989); 38 C.F.R. §§ 3.102, 3.400 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1966 to January 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the March 2015 Regional Office (RO) determination denying jurisdiction over the Veteran’s November 2014 request for revision on the basis of clear and unmistakable error (CUE) in the May 2003 rating decision, alleging failure to grant an effective date of June 26, 1990 for the granting of service connection for anxiety disorder. The Veteran filed a timely notice of disagreement. The August 2017 Statement of the Case (SOC), continued denial of the jurisdiction to review request for (CUE) determination in the May 2003 rating decision, noting that the October 2013 Board decision denying CUE in the October 1990 rating addressed how August 4, 1998 effective date assigned in the May 2003 rating decision was the earliest allowed under the provision of 38 C.F.R. § 3.400(r). The Veteran filed a timely substantive appeal. In the April 2020 Board decision, determined that the Board’s October 2013 decision was not a de novo review and therefore, the Veteran’s November 2014 CUE claim in the May 2003 rating decision had not been adjudicated on its merits. As such, the Board remanded the matter back to the RO to consider the Veteran’s CUE motion on its merits. In compliance with the April 2020 remand directives, the RO adjudicated the claim on the merits and issued a Supplemental Statement of the Case (SSOC) in April 2020, finding no CUE in the May 2003 decision and denying the request for revision. Revision based on clear and unmistakable error (CUE) of the May 2003 rating decision which granted service connection for generalized anxiety disorder with an effective date of August 4, 1998 The Veteran asserts that his original June 1990 claims for anxiety and depression remained unadjudicated and pending because they were not addressed in the October 1990 rating decision, which denied entitlement to service connection for bipolar disorder. See Third Party Correspondence, November 2014; see also Correspondence, May 2015. The Veteran contends that the May 2003 was a grant for service connection for the pending June 1990 claims for anxiety and depression. Id. Therefore, the Veteran asserts, the effective date for the grant of service connection for generalized anxiety disorder should be June 26, 1990, the date the Veteran submitted his initial claim. Id. When a claimant asserts that Department of Veterans Affairs (VA) failed to adjudicate a reasonably raised claim in the context of a request for revision of a prior decision on the basis of clear and unmistakable error (CUE), the VA must give a full and sympathetic reading to the claimant’s prior submissions to determine whether such a claim was reasonably raised; if it is determined that a claim was reasonably raised, VA must then determine whether such a claim is pending or whether it was adjudicated as part of a final decision. Richardson v. Nicholson, 20 Vet. App. 64 (2006). On June 26, 1990, VA received the Veteran’s application for compensation claiming the nature of his sickness, disease or injury for which the claim was made as “anxiety/depression (Bi-polar disorder) January/February 1967.” See VA 21-526, June 1990. The Veteran reported the he received treatment for anxiety/depression during and after service, and bipolar disorder after service. See Id.; see also VA 21-4138, June 1990. A review of the evidence of record reflects that VA requests for private treatment records listed the Veteran’s condition requiring treatment as “anxiety/depression (bi-polar disorder).” See Third Party Correspondence, July 1990; Medical Treatment Record-Non-Government Facility, July 1990; Medical Treatment Record-Government Facility, July 1990. During service, the Veteran reported unexplained anxiety in December 1967. See STR-Medical, October 1990 at p.12 of 103. During an August 1969 military board action examination, the Veteran reported having frequent or terrifying nightmares, depression or excessive worrying, and nervous trouble. Id. at p.4 of 103. The Veteran reported that he started having terrifying dreams while in the field 2 years prior and was treated for nervousness at age 10 by hypnosis. Id. at p.5 of 103. In November 1969, the was treated with Thorazine intramuscularly after reporting feeling confused and disoriented. Id. at p.20 of 103. A reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent “claim” for the same disability. See Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006); Myers v. Principi, 16 Vet. App. 228 (2002); 38 C.F.R. § 3.160(c). In the October 1990 rating decision, the RO adjudicated the issue of bipolar disorder and passive/aggressive character and behavior disorder. The RO did discuss the evidence of reports of symptoms and clinical observations of anxiety or depression but found that the most probative clinical assessments of his single psychiatric disorder were bipolar disorder and passive/aggressive character and behavior disorder in which manifestations of anxiety and depression were present. In July 1994, the Veteran was admitted to the hospital following complaints of chest pain. See VA Form 10-1000, July 1994. The Veteran’s diagnosis was noted as anxiety and depression. In August 1994, the Veteran reported that he was currently unemployed because of severe depression, that during his military service his depression worsened, and dramatically, and that his depression stems from his time spent on active duty. See VA 21-4138, August 1994. The Veteran provided chronological history of his treatment for anxiety, depression and other mental health issues from 1966 to 1994. See Correspondence, August 1994. Additionally, the Veteran provided a copy of a completed Post-traumatic Stress Disorder Questionnaire, in which he reported that he has been treated for anxiety/depression from 1966 to the date of the report. See VAMC Other Output/Reports, August 1994. The Veteran listed his current mental or emotional symptoms as anxiety, depression, nightmares, substance abuse, arrests, employment problems, authority problems, sexual dysfunction, divorce, alienation, anger, irritability. Id. In a March 1995 statement in support of the claim, the Veteran noted that his statement was regarding his “claim for disability per service aggravated recurrent depression established on or about August 11, 1994.” The Veteran reported that his private provider stated that the Veteran should be diagnosed with Bipolar II or recurrent unipolar depression. See VA 21-4138, March 1995. In an April 1995 statement, the Veteran asserted that his history of depression was only one symptom of Bipolar Affective Disorder and that his disorder developed and was aggravated by his active duty service. See Affidavit, April 1995. In the May 1995 rating decision, the RO denied the reopening of the claim for bipolar disorder based on no new and material evidence. In June 1995, the Veteran was informed that the material he submitted was not material to his claim for bipolar disorder because the evidence did not establish treatment for psychosis during service or within one year of separation. See Notification Letter, June 1995. The Veteran filed a timely notice of disagreement and reported that his “current disability conformed to a chronic pattern of recurrent depression with characteristic hypomanic episodes.” See NOD, June 1995. In July 1995 Statement of the Case (SOC), the RO again denied the reopening of the claim for service connection for bipolar disorder based on the determination that no new and material evidence had been submitted. In July 1995, the Veteran filed a timely substantive appeal. Additionally, the Veteran submitted a request to amend his claim for service connection for bipolar disorder to include consideration of service connection for any and all mental illness and/or psychological conditions evidenced by his military and non-military service records. See VA 21-4138, July 1995. In the September 1997 Board decision, the issue was recharacterized in the title as “Whether new and material evidence sufficient to grant reopening a claim of entitlement to service connection for an acquired psychiatric disability has been submitted.” See BVA Decision, September 1997. The Board found that the additional evidence added to the record since the October 1990 rating decision was cumulative of evidence previously considered, did not go to the question of whether bipolar disorder was incurred in or aggravated by active military service, is not competent, and does not create a reasonable possibility that the previous determination would be changed. Id. The Board stated that the Veteran’s June 1990 claim was for bipolar disorder based on symptoms of anxiety and depression. Although, the decision did not specifically address the Veteran’s anxiety and depression claims, the Veteran could deduce that the claims were adjudicated. In an October 1997 Motion for Reconsideration of Board of Veteran’s Appeals Decision, the Veteran noted that the September 1997 Board decision reflected “errors in stating the contentions of the appellant on appeal” and requested reconsideration based upon the accurate assessment of the Veteran’s contentions. See Correspondence, October 1997. The Veteran stated that his July 1995 substantive appeal included an amendment to his claim to include any and all psychological disorders resulting in and/or aggravated by active military service and provided documentation of his current psychological diagnoses. Id. The Veteran stated that he had provided documents and testimony evidence to support a claim for service-connected aggravation of a mood disorder to include depression and perhaps bipolar II affective disorder, sexual and gender identity disorders, and substance abuse disorder. In December 1997, the Veteran’s motion for reconsideration was denied. In an August 4, 1998 correspondence, the Veteran noted that he sought service connection for mood disorders, sex and gender identity disorders, and polysubstance abuse disorders. See VA 21-4138, August 1998. A review of the evidence of record reflects that prior to August 4, 1998, the Veteran did not file an appeal the September 1997 Board decision with the Court of Veterans’ Appeals (CAVC). In October 2013, the Board addressed the same issue now currently again brought before the Board. The Veteran had provided testimony at a June 2013 hearing which was considered. He also presented additional evidence. The evidence consisted of definitions of several mental, disorders. CUE claims are determined based on the evidence of record at the time of the rating decision being attacked as CUE. See Russell v. Principi, 3 Vet. App. 310, 3 13-14 (1992). Consequently, the newly submitted evidence was not relevant to the Veteran's CUE claim. The Board summarized and considered the service and post-service lay and medical evidence of record in October 1990. The Board found that the Veteran’s assertion that the October 1990 rating decision should have adjudicated a claim of service connection for an anxiety and depression disability was simply a disagreement with the weighing of the evidence and the factual determinations the RO reached. The Board explained that a mere disagreement as to how the facts were weighed or evaluated by the RO cannot constitute CUE. 38 C.F.R. § 20.1403(d). Notably, the October 1990 rating decision specifically discussed anxiety and depression. It is clear that the RO considered all of the Veteran's claimed psychiatric disabilities at that time including anxiety and depression. The Board recognized that the STR contain complaints of anxiety and depression. However, the most probative STR are the psychiatric evaluations which state that the Veteran had no psychiatric disability, only a behavior/character disorder. A claim of CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo v. Brown, 6 Vet. App. 40 (1993). Thus, the Board found as the Veteran's contention that the evidence of record at the time warranted granting service connection for anxiety or depression, and that the RO committed error by not adjudicating such, is a mere disagreement with the RO's evaluation of the facts before it, this contention did not give rise to a finding of CUE. In February 2014, the Board denied reconsideration of the October 2013 decision. The Veteran initiate an appeal to the U.S. Court of Appeals for Veterans Claims (Court) in March 2014 but withdrew the appeal and the Court dismissed it in September 2014. In November 2014, the Veteran again petitioned the RO for reversal or revision of the June 1990 rating decision on the same grounds as had already been considered by the Board in October 2013. The attorney who represented the Veteran in the appeal to the Court made no mention of the previous Board decision. In August 2017 the RO declined jurisdiction of the renewed claim, citing the Board’s final October 2013 decision. This appeal followed. A Board decision subsumes any prior rating decisions addressing the same issue (a concept known as "delayed subsuming"). See Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998); Smithy v. Brown, 35 F.3d 1516 (Fed. Cir. 1994) See also 38 C.FR. § 20.1104. However, in April 2020, the Board considered the applicability of the subsuming and delayed subsuming doctrines with regard to the Board’s October 2013 decision. The Board found that no subsuming doctrine applied in this case because the Board’s October 2013 decision addressed the merits of the Veteran’s earlier CUE claim which collaterally attacked the failure to grant service connection in an October 1990 rating decision but not the underlying CUE claim itself. The Board agreed that these CUE claims are highly correlated and essentially mirror one another but did not agree that subsuming doctrines apply in this case. 38C.F.R. §20.1104. See also Duran v. Brown, 7Vet. App.216, 224 (1994); VAOPGCPREC 14-95. For the doctrine of delayed subsuming to apply, the Board must adjudicate the claim on its merits in a de novo review before the unappealed RO decision on the same matter is subsumed. The Board did not adjudicate the merits of the Veteran’s effective date claim prior to the issuance of the May 2003 rating decision. The Board reiterates this is true with regard to both previous Board decisions pertaining to this issue. The Board’s 1997 decision which declined to reopen the Veteran’s claim for an acquired psychiatric disability was not a decision based on the merits of the Veteran’s case. The Board’s October 2013 decision was not a de novo review. Therefore, the Board remanded the claim for a de novo review by the Agency of Original Jurisdiction which was issued in an April 2020 supplemental statement of the case. The Board again finds that the Veteran’s assertion that the October 1990 rating decision should have adjudicated a claim of service connection for an anxiety and depression disability was simply a disagreement with the weighing of the evidence and the factual determinations the RO reached. Again a mere disagreement as to how the facts were weighed or evaluated by the RO cannot constitute CUE for the same underlying reasons as explained above. 38 C.F.R. § 20.1403(d). Therefore, a revision based on clear and unmistakable error (CUE) of the May 2003rating decision which granted service connection for generalized anxiety disorder with an effective date of August 4, 1998 is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.