Citation Nr: 21066043 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-15 058 DATE: October 28, 2021 ORDER Entitlement to an earlier effective date prior to May 31, 2005 for service connection for a cognitive disorder and major depression due to clear and unmistakable error (CUE) in a June 1973 rating decision is denied. FINDING OF FACT The Veteran has been separately rated for cognitive dysfunction and psychological symptoms of record at the time of the June 1973 rating decision as a residual of viral encephalitis, and no formal or informal claim of service connection for a cognitive disorder or major depression, other than as a residual to viral encephalitis, was received by VA prior to May 2005. CONCLUSION OF LAW The criteria to establish an effective date earlier than May 31, 2005 for service connection for a cognitive disorder not otherwise specified and major depression based on CUE in a June 1973 rating decision are not met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to February 1973. This matter is on appeal to the Board of Veterans' Appeals (Board) from April 2012 and September 2013 rating decisions. Procedurally, following a claim for service connection for viral encephalitis, a June 1973 rating decision granted separate ten percent ratings for headaches and sensory disability as residuals of viral encephalitis. The Veteran did not file a notice of disagreement, nor was new and material evidence submitted within the appeal period, and the June 1973 rating decision became final. In 2008, the Veteran was granted service connection for a cognitive disorder not otherwise specified and major depression. He was assigned a 100 percent rating as of May 31, 2005, the date of claim. The Veteran subsequently filed for an earlier effective date based on CUE in the June 1973 rating decision. Specifically, the Veteran asserts that the June 1973 rating decision contained CUE because the RO did not consider that his encephalitis residuals also included impairment of mental function. He also contended that a separate claim of service connection for a mental disorder was inferred from the evidence then of record. In July 2020, the Board found that CUE was committed in the June 1973 rating decision. Under the version of 38 C.F.R. § 4.124a, Diagnostic Code 8000, in effect at the time of the 1973 claim, encephalitis was rated either as active febrile disease or based on its residuals, with a minimum 10 percent rating. The then-applicable regulation mandated that encephalitic residuals were to be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a (1973). The Board found that the RO committed CUE by only evaluating the Veteran for motor and sensory impairment, and not for mental impairment, which was evidenced by the record at the time. In accordance with this finding, the Veteran has since been assigned a separate 10 percent rating for memory loss, combined with 10 percent for sensory impairment, back to 1973. The Board also found that an earlier effective date for service connection for a cognitive disorder and major depression was not warranted from the record. There was no indication of any formal or informal claim for service connection for these disabilities at any time prior to May 2005. Pursuant to a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (CAVC) upheld the finding of CUE in the June 1973 rating decision but vacated the remainder of the July 2020 Board decision and remanded back to the Board. The JMPR states that the Board did not adequately address CUE in the June 1973 decision because it did not correctly apply 38 C.F.R. § 4.124a (1973), Diagnostic Code 8000. It further states that the Board did not consider whether there was CUE because the RO did not separately evaluate the Veteran's cognitive impairment and psychiatric symptoms (to the extent they are evidenced by the record in June 1973) as impairment to mental function as a residual. 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, 6Vet. 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). Shortly after beginning basic training, the Veteran incurred viral encephalitis. A June 1971 service treatment record (STR) indicates that the Veteran was noted to have symptoms of stuttering, nightmares, and some cognitive dysfunction following encephalitis. A June 1971 "clinical record cover sheet" indicates that the Veteran had post-viral encephalitis and a "psychiatric disorder, etiology to be determined" which was "pending further evaluation." The Veteran was granted a period of convalescent leave and returned to duty on July 26, 1971. A medical report signed on September 1, 1971 by a medical officer indicates that the Veteran underwent psychological testing on his return from convalescent leave which showed he functioned cognitively within the average range, although with "some discrepancy among specific skills." In particular, it noted that "there appeared to be no marked memory problem" as evidenced by testing, and that a Minnesota Multiphasic Personality Inventory (MMPI) test "was consistent with a basically unstable personality which existed prior to the onset of his encephalitis." The report also indicates that on his return from convalescent leave on July 26, 1971, the Veteran had no "demonstrable neurological residual, including the fact that he had lost his stuttering phenomenon entirely." Although he complained of nightmares, he was returned to active duty "with no change in profile and on no medications." In his February 1973 pre-separation physical examination questionnaire, the Veteran indicated that he then had or once had frequent trouble sleeping, depression or excessive worry, memory loss, nervous trouble, and periods of unconsciousness. However, the accompanying clinical evaluation ("Report of Medical Examination") indicates the Veteran's psychiatric condition was normal. At his separation, the Veteran was assigned a "1" rating assessing his psychiatric condition under the PULHES profile system, indicating that the Veteran's psychiatric condition was then in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina ("P"); upper extremities ("U"); lower extremities ("L"); hearing ("H "); eyes ("E") and psychiatric condition ("S"); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). Prior to his separation, the Veteran indicated that there had been "no change in [his] medical condition." In February 1973, the Veteran filed a claim of service connection for viral encephalitis "from 1971 to present time." The Veteran made no formal or informal claim for a mental condition, nor did he express a desire to file a claim for a mental condition. In May 1973, the Veteran was afforded a VA examination. The Veteran reported in the medical history portion of the examination that after his viral encephalitis, he had residual headaches, fatigue, speech, and memory defects which "gradually and slowly improved." He reported that he had headaches and "some trouble remembering and recognizing things [and] people." The listed relevant diagnosis was "residual post viral encephalitis syndrome." In the consultation report, it was described that upon onset of viral encephalitis in March 1971, he began experiencing delusions and was not fully aware of what he was doing. He noted that he was beginning to stutter and had difficulty saying whole sentences and would say the wrong words and be unable to say what he wanted. He had occasional difficulty understanding others. He was observed until approximately December 1971 and had continued to improve except headaches. At the time of the examination, he had some residual problems such as difficulty recognizing friends and reported that sometimes things he has done seem to be "like in a dream." The examiner's impression was residual headaches, fatigability, minimally reduced coordination on testing, and subjective sensory changes as described. At the outset, the Board notes that the Veteran has referenced post-1973 evidence and caselaw in support of his CUE motion. By its very terms, a motion for CUE must be based on the evidence and law as it existed at the time of the decision. Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); see also Russell, 3 Vet. App. at 313-14. To the extent the Veteran has contended in previous correspondence that because he endorsed "nervous trouble" at discharge, VA failed in its duty to assist by not developing an inferred nervous condition claim, the Board finds this contention without merit. It is now well-settled that the failure to fulfill the duty to assist does not constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). Moreover, the endorsement of a symptom in an in-service medical record alone is insufficient to put VA on notice that the Veteran intends to file a claim for service connection for a disability associated with that symptom. The Veteran has stated in correspondence, citing to VAOPGCPREC 4-2004, that a claim for an acquired psychiatric disorder should have been construed by his 1973 viral encephalitis claim. While the Board does not find that a viral encephalitis claim could be reasonably construed as an acquired psychiatric claim, it does find that the Veteran reasonably intended to apply for all residuals of his viral encephalitis, to include any residual mental, psychiatric, or cognitive impairment shown by the record. As contended by the Veteran, cognitive impairment, manifesting primarily as memory loss, was evidenced by the record as of June 1973. The STRs show some psychological overlay associated with encephalitis, and while the Veteran's stuttering and speech deficits appear to have improved by discharge, the Veteran endorsed a residual of memory loss (i.e., difficulty recognizing friends) and feeling like he was in a dream at times. Speech and memory deficits were labeled as residuals, though they had slowly and gradually improved. Thus, cognitive, psychological, or mental impairment were shown to be residuals of viral encephalitis. However, the Board has already found CUE in failing to evaluate for the above impairment as a residual, and the Veteran is now in receipt of a 10 percent rating for mental impairment, combined with sensory impairment, back to 1973. To put it succinctly, the JMPR states that the Board did not consider whether there was CUE because the RO did not separately evaluate the Veteran's cognitive impairment and psychiatric symptoms as impairment to mental function as a residual. It has already been found in the July 2020 Board decision that the RO did not adequately consider mental function as a residual. Whether labeled as mental function, cognitive impairment, or psychological symptoms, the symptoms relating to the psyche at the time consisted of speech and memory deficits, and these are now part of the Veteran's evaluation. The Board can find no reason, legal or factual, for an earlier effective date for service connection for a cognitive disorder and major depression. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110 (a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. Based on the evidence available at the time, the Board finds that the RO did not commit CUE by failing to construe and develop an inferred acquired psychiatric claim; rather, the CUE committed was the failure to evaluate all evidenced symptoms as residuals of viral encephalitis in accordance with 38 C.F.R. § 4.124a. The cognitive, psychological, and mental symptoms of record at the time, as residuals of viral encephalitis, have now been accounted for and separately rated, and that CUE has been cured. There is no other CUE committed in the June 1973 rating decision that would warrant an earlier effective date for service connection for a cognitive disorder and major depression, and the Veteran's claim is denied. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.