Citation Nr: 21004817 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-41 469A DATE: January 28, 2021 ORDER Entitlement to an earlier effective date than June 7, 2010 for generalized anxiety disorder with bipolar disorder, to include as a result of an alleged clear and unmistakable error (CUE) in a September 1994 and July 1995 rating decisions, is denied. FINDINGS OF FACT 1. A September 1994 rating decision denying service connection for a personality disorder was not final as additional, pertinent service treatment records (STRs) were subsequently added to the claims folder. 2. A July 1995 rating decision which denied service connection for an acquired psychiatric disorder is final. 3. The correct facts, as known at the time, were before the VA adjudicator in the July 1995 rating decision and the statutory and regulatory provisions extant at the time were correctly applied. 4. VA received the Veteran’s request to reopen a claim for service connection for an acquired psychiatric disorder on June 7, 2010. 5. The Veteran had no communication with VA from the July 1995 rating decision and prior to the June 7, 2010 for the issue of service connection for an acquired psychiatric condition that could be reasonably construed as a claim of entitlement to benefits. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date than June 7, 2010 for generalized anxiety disorder with bipolar disorder, to include as a result of an alleged CUE in September 1994 and July 1995 rating decisions, have not been met. 38 U.S.C. §§ 5110, 5109A (2018); 38 C.F.R. §§ 3.104, 3.105(a), 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service with the United States Coast Guard from May 1989 to July 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision denying an earlier effective date than June 7, 2010 for the granting of service connection for generalized anxiety disorder with bipolar disorder. The AOJ awarded service connection for generalized anxiety disorder with bipolar disorder in April 2011, and the Veteran disagreed with the effective date of award assigned in January 2012. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). She subsequently perfected a timely appeal to the Board. In an April 2018 correspondence, the Veteran alleged CUE in a July 1995 rating decision. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2018. A transcript of the hearing is associated with the electronic claims file. The Veteran was advised that arguments for CUE in prior decision would be considered and to submit a precise assertion. In a May 2018 correspondence, the Veteran expanded her CUE allegation to include a September 1994 rating decision. In a June 2018 Board decision, the issue of CUE in a September 1994 rating decision was remanded for issuance of a supplemental statement of the case (SSOC) In an August 2019 Board decision, the issue of CUE in a July 1995 rating decision was remanded for issuance of an SSOC. Clear and Unmistakable Error (CUE) Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, where evidence establishes such error, the prior rating decision will be reversed or amended. 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. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error of fact or 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). CUE is a collateral attack on an otherwise final rating decision by an AOJ. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). A mere misinterpretation of the facts does not constitute CUE. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Assertions that the previous adjudication at issue “improperly weighed and evaluated the evidence” does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43. To establish CUE in a prior decision, the following requirements must be met: (1) either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Entitlement to an earlier effective date than June 7, 2010 for generalized anxiety disorder with bipolar disorder, to include as a result of an alleged CUE in September 1994 and July 1995 rating decisions The Veteran contends that she suffered from a psychiatric condition other than a personality disorder prior to and at the time of the September 1994 and July 1995 rating decisions, and therefore, an earlier effective date than June 7, 2010 is warranted. See Correspondence, May 2018; Correspondence October 2020. The Veteran asserts that she was misdiagnosed in the military with personality disorder to expedite her discharge and that the AOJ committed CUE by not properly applying 38 C.F.R. §§ 4.126 and 4.129. Id.; Correspondence, April 2018. In pertinent part, the Veteran filed an application for VA benefits in August 1994 noting “10 May 1994 Diagnosed with Personality Disorder by Dr. [D.] Pensacola Naval Hospital.” See VA Form 21-526, August 1994. The record reflects that the Veteran was scheduled for a mental disorders VA examination. See VA Form 21-2507a, August 1994. However, the Veteran refused examination at the assigned location. See VA Form 21-207a, September 1994. A September 1994 rating decision denied service connection for personality disorder noting that a personality disorder is a constitutional and developmental abnormality for which service connection may not be established. The evidence of record included STRs which noted that the Veteran was first diagnosed with adjustment disorder in 1990; had experienced mild problems with anxiety and depression since a 1992 miscarriage; was being treated with medication for anxiety and depression months prior to discharge; was recommended for administrative separation for unsuitability based on a primary diagnosis of personality disorder, NOS with borderline histrionic and passive-aggressive traits; and reported having depression and excessive worry on her separation examination questionnaire. See STR-Medical-Photocopy, August 1994. In September 1994, the Veteran requested to have her appointment rescheduled to December because she recently started a new job. See VA Form 21-4138, September 1994. By letter dated October 11, 1994, the AOJ notified the Veteran of the September 1994 denial and her appellate rights. In October 1994, the Veteran requested to “reopen” her denied claim. See VA Form 21-4138, October 1994. In March 1995, the Veteran was afforded a mental disorders VA examination. The examiner noted that the Veteran initially claimed to have none or no periods of depression or crying, but later “it became clear that she had seen some psychiatrists for crying spells upon first entering the Coast Guard,” which the Veteran attributed to having left home for the first time in her life. See VA Examination, March 1995. Upon further examination, the Veteran denied having depression, hallucinations, or other signs of mental illness, but acknowledged having frustration with being misunderstood by others. The examiner noted that the Veteran was guarded, evasive, and tried to present herself in the most positive way; had poor eye contact and mistrust of others; and tended to blame others and felt that she was doing a better job than others would recognize. The examiner diagnosed the Veteran with traits of paranoid, passive-aggressive, and narcissistic personality style. Additionally, the examiner noted that the Veteran’s C-file or any other records were not available for review. In June 1995, additional, pertinent STRs were added to the Veteran’s claims file which noted that in 1990, the Veteran was transferred in order to received counseling due to complaints of personality conflicts, stress, and paranoia. See STR-Medical, June 1995 at p.88 of 114. The Veteran was diagnosed with problems adjusting. Id. Additionally, the STRs revealed that, in April 1994, the Veteran received profiles due to anxiety. At this point, the Board observes that the September 1994 rating decision cannot be a final decision as the addition of relevant, existing STRs required readjudication of the claim pursuant to 38 C.F.R. § 3.156(c) then in effect. A July 1995 rating decision denied service connection for an acquired psychiatric disorder on the merits noting the addition STRs not previously considered. In so doing, the AOJ noted that the March 1995 examiner made no psychiatric diagnosis and that no evidence had been received showing an acquired psychiatric disorder was incurred in or aggravated by the Veteran’s military service, nor had psychosis been diagnosed or manifested to a compensable degree within 1 year following discharge. By letter dated July 27, 1995, the AOJ notified the Veteran of the July 1995 denial and her appellate rights. The Veteran did not submit a notice of decision, and new and material evidence was not received, within one year of the date of notice of decision. That decision, therefore, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.202, 20.302 (1994). Based on the evidence of record at the time of the July 1995 rating decision, the Board finds that the rating action did not involve CUE in the denial of a claim of service connection for an acquired psychiatric disorder. The STRs before the AOJ included an assessment of adjustment disorder in 1990, reports of mild problems with anxiety and depression since a 1992 miscarriage, reports of personality conflicts, stress, and paranoia, a profile for anxiety, a private neurology assessment for a host of symptoms in 1994 and ultimately an administrative separation for unsuitability based on a primary diagnosis of personality disorder, NOS with borderline histrionic and passive-aggressive traits. The March 1995 VA examiner diagnosed the Veteran with traits of paranoid, passive-aggressive, and narcissistic personality style, but no found no formal diagnosis of an acquired psychiatric disorder. The record at the time of the June 1995 AOJ decision clearly included a history of well documented psychological symptoms. The STRs included differential assessments at various times but ultimately resulted in a discharge diagnosis of personality disorder, NOS with borderline histrionic and passive-aggressive traits. In particular, the Veteran underwent an extensive psychiatric consultation in May 1994 which included a historical review of the Veteran’s history and complaints, descriptions of her conduct by her superiors, personal interview of the Veteran, psychological testing and mental status examination which specifically considered provisional diagnoses of acute situational adjustment reaction, depression and personality disorder. The March 1995 VA examiner similarly assessed the Veteran with traits of paranoid, passive-aggressive, and narcissistic personality style but found no acquired psychiatric disorder. The Veteran, while having no formal training in evaluating psychiatric disorders, also referred to her understanding of being diagnosed with a personality disorder. See VA Form 21-526, August 1994. Overall, the Veteran’s argument amounts to an allegation that the AOJ should have weighed the facts differently. Simply claiming CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Fugo, 6 Vet. App. at 44; Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The AOJ had ample evidence to support a factual conclusion that the Veteran did not manifest a formally diagnosed acquired psychiatric disorder but rather a personality disorder. The Veteran specifically argues that the AOJ failed to obtain complete STRs such as records pertaining to a psychiatric evaluation in 1990 stemming from allegations of harassment which, if conducted, would have led to service records regarding another service individual detailing the harassment complaints. The Board observes that the STRs before the AOJ in June 1995 appear complete and the record did not disclose any specific relevant and existing record that was missing. More specifically, there is an assessment of adjustment disorder in 1990 in the STRs. The Veteran next argues that the AOJ erred by not obtaining private medical records in 1994 pertaining to symptomatology of hyperacusis, irritability, anxiousness and headaches initially treated with Xanax and Trazadone. The Board observes that the STRs included records from Mobile Neurology Group in May 1994 which was considered and cited in the extensive psychiatric consultation prior to discharge. Any perceived breach in the duty to assist in June 1995 cannot form the basis for CUE. Cook v. Principi, 318 F.2d. 1334 (2002). The Veteran also asserts that the psychiatric consultation in May 1994 was hastily put together, and relied on inaccuracies of her actual history. She further generally argues that the military and the 1995 VA examiner misdiagnosed her with a personality disorder, and failed to take into account the in-service assessments of adjustment disorder, depression and panic disorder. As noted above, the May 1994 psychiatric consultation specifically considered provisional diagnoses other than personality disorder and concluded that the Veteran manifested only a personality disorder. With regard to any inadequacy of any of these examinations, including the VA examiner not reviewing the claims folder, the Board notes that alleged failures to obtain proper examination cannot constitute the basis for a claim of CUE because “there is... no way of knowing what such an... examination would have yielded... , so it could not be concluded that it ‘would have manifestly changed the outcome’“). Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997); Cook, 318 F.3d at 1348. The Veteran generally argues that STRs establish diagnoses of adjustment disorder, depression and panic disorder which were chronic in nature and warranted an award of service connection independent of a diagnosis of a personality disorder. She argues that the AOJ has picked and chosen the evidence to exclude these diagnoses and violated 38 C.F.R. § 4.126 which specifically instructed the rater to “assign an evaluation” based on “all” the evidence of record rather than “solely” on an examiner’s assessment at the moment of examination. The law extant in 1995 allowed an award of service connection for an acquired psychiatric disorder superimposed on a personality disorder. See VAOPGCPREC 82-90 (July 18, 1990). However, the May 1994 psychiatric consultation specifically considered her prior history and provisional diagnoses such as acute situational adjustment reaction and depression and concluded that the proper diagnosis for this symptomatology was a personality disorder rather than a chronic acquired psychiatric disorder. Thus, there was competent evidence addressing this issue and the AOJ did not commit CUE by exercising its own medical judgment. The Veteran also argues that CUE was committed as it pertains to 38 C.F.R. § 4.129 by not awarding benefits based upon a mental disorder due to stress which was severe enough to bring about a release from active service. However, as there was sufficient competent evidence of record that the Veteran did not have a chronic mental disorder but rather a personality disorder, this provision is inapplicable. This is a disagreement pertaining to how the AOJ evaluated the evidence as to the proper diagnosis. Additionally, the Veteran’s assertion that the in-service diagnosis of personality disorder was a misdiagnosis cannot rise to the level of CUE. The pertinent law reflects that medical personnel are not adjudicators and, as such, cannot commit CUE. See Henry v. Derwinski, 2 Vet. App. 88, 90 (1992); see also Shockley v. West, 11 Vet. App. 208 (1998) (a claim of misdiagnosis could be interpreted as either assertion of failure to satisfy duty to assist or disagreement with weighing of facts, neither of which can be clear and unmistakable error). The Board finally notes that, in the Informal Hearing Presentation dated September 2020, the Veteran’s representative argued that the AOJ committed CUE by not considering a reasonably raised claim of PTSD due to report of symptoms of insomnia and nervousness in a March 2, 1994 substantive appeal. The Board does not find such a document, but notes that the June 1995 rating decision considered an overall claim of service connection for an acquired psychiatric disorder. In sum, the Board finds that the September 1994 rating decision was not final, and that the July 1995 rating decision do not rise to the level of outcome determinative CUE, and reversal or revision of this decision on the basis of CUE is denied. Earlier Effective Date Having established that there was no CUE in the July 1995 rating decision denying service connection for personality disorder, the Board has considered whether an earlier effective date is otherwise warranted for the grant of service connection for generalized anxiety disorder with bipolar disorder. Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date based upon a grant of direct service connection will be the day following service from active service or date entitlement arose if claim is received within 1 year after separation from service; or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2). Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. The Veteran was denied service connection for an acquired psychiatric disorder in the July 1995 rating decision. As discussed above, this decision is final. As noted above, the effective date of the award of an evaluation based a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. VA received the Veteran’s request to reopen the claim of service connection for bipolar disorder on June 7, 2010, and service connection was ultimately granted effective from the date of this claim to reopen. Aside from her allegations of CUE in the initial denial of service connection, the Veteran has not provided any additional argument for why an earlier effective date would otherwise be warranted. The Board has considered the provisions of 38 C.F.R. § 3.156 (c)(1), which provide that, at any time after VA issues a decision on a claim, if it 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. Under such circumstances, the claim would be reviewed on a de novo basis and effective date from the date of initial claim would be warranted. However, no such service records were received after the July 1995 rating decision, and therefore 38 C.F.R. § 3.156 (c)(1) is not applicable. As discussed above, the Board finds no reference to a specific STR known to exist which is missing. Moreover, a review of the record does not indicate that the Veteran submitted any communication with VA from the July 1995 rating decision and prior to the June 7, 2010 for the issue of service connection for an acquired psychiatric condition that could be reasonably construed as a claim of entitlement to benefits. The Board has considered whether 38 C.F.R. § 3.157(b) in effect prior to 2010. This provision stated that once a formal claim for pension or compensation had been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability was not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in 38 C.F.R. § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disorder. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999). Thus, any reference to psychiatric symptoms in the VA clinic setting cannot constitute a formal or informal claim under 38 C.F.R. § 3.157(b). Sears, 16 Vet. App. at 249. As a result, there is no basis upon which to grant an effective date earlier than June 7, 2010, the date the Veteran’s claim to reopen was received. T. MAINELLI 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.