Citation Nr: 21073506 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 21-00 776 DATE: December 8, 2021 ORDER A November 12, 2020, decision of the Board of Veteran Appeals (Board) did not contain an undebatable error of fact or law that resulted in a manifestly different outcome, and the Board's motion to revise that decision that granted service connection for posttraumatic stress disorder (PTSD) on the basis of clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. In a January 2020 Board hearing, a reasonable person could have determined that the Veteran provided credible testimony that his active service duties in service included the loading and unloading of the remains of fellow service members from various aircraft. 2. The Veteran's service personnel records confirm that his duties included loading and unloading aircraft. 3. Although an August 2020 VA medical examiner's report included a recitation of evidence that appears unrelated to the Veteran, it also appears to accurately describe the Veteran's reports of his in-service stressor relating to human remains and determined that this stressor is adequate to support a diagnosis of PTSD and relates to fear of hostile military activity. 4. Although the Board's November 2020 decision did rely on the August 2020 VA medical examination report and its partially inaccurate factual foundation, it is not undebatable that the outcome would have been manifestly different had the Board discounted this factual inaccuracy. CONCLUSION OF LAW The criteria for revision of the November 2020 decision of the Board on the basis of clear and unmistakable error have not been met. 38 U.S.C. § 7111; 38 C.F.R. §§ 3.304(f), 20.1400-11. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Army from May 1958 to November 1958 and July 1960 to July 1963. He subsequently served in the Air Force Reserves. This matter comes from the Board's own motion to revise a November 2020 decision of the Board that granted service connection for PTSD. Whether the November 2020 Decision of the Board Contains 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 the United States Court of Appeals for Veterans Claims (Court) 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. Here, the Veteran was informed of the Board's motion in an August 2021 letter. That letter informed the Veteran and his representative that the grant of service connection in the November 2020 decision was based on records from another veteran indicating he served after 1990 and that he served in Iraq. 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). After reviewing the evidence of record at the time of the November 2020 decision and the law in effect at the time of that decision, the Board does not find that the error in that decision would unequivocally result in a manifestly different outcome. The Board therefore does not find that the criteria to revise that decision have been met and the Board's own motion is denied. The issue before the Board at the time of the November 2020 decision was whether the criteria were satisfied to grant a claim for service connection for PTSD. The substantive law regarding this issue has not changed since that time. As the Board explained in its decision, service connection for PTSD required medical evidence of a diagnosis of the condition, a link between current symptoms and an in-service stressor, and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). Although the November 2020 decision described the Veteran's contentions relating to his stressor as being exclusively due to his active-duty period of service, the Board's current review of the evidence indicates he appears to have suggested that his psychological symptoms related to his duties loading and unloading human remains both in Germany and in New Jersey. He explained that he would never forget the smell of death relating to these duties. The record indicates that these duties were performed during his service in the Reserves while stationed at McGuire Air Force Base from March 1986 to February 1987. Based on this evidence and the Veteran's testimony at the hearing, the Board remanded the matter in February 2020 to obtain a medical examination and opinion regarding the nature and etiology of any current PTSD disability. He underwent such an examination in August 2020. The content of this examination report is the basis for the Board's own motion to revise the November 2020 decision on the basis of CUE. In providing the examination report, the psychologist who conducted the in-person evaluation indicated she had reviewed the Veteran's VA electronic claims folder. She also provided a single psychiatric diagnosis of PTSD. Critical to the Board's CUE motion, the examiner also included a section narrating her comments on her review of the evidence in the claims file. The first three lines of this comment include references to a post-deployment questionnaire from September 2003 and a pre-deployment health assessment from April 2008. The questionnaire reportedly referred to exposure to loud noises and the health assessment referred to deployments in Germany and Iraq. The Veteran's verified period of service include no such deployments or any active or reserve service after 1992. As such, the Board initially determined that the examination was based on an inaccurate factual basis and as the November 2020 decision relied on the examination report, the current CUE motion followed. While the Board does not doubt that these few lines in the evidence review section of the report do not relate to the Veteran and may relate to a separate, unrelated service member, the Board does not find that this error rises to the level of CUE. As explained above, this is a very rare type of error that requires not only an undebatable error of fact or law but a determination that that error led to a manifestly different outcome. In other words, it must be clear that, but for the error, no reasonable person would have decided that the outcome would be the same. The Board does not now find that that high bar has been met. Specifically, the Board notes that although these few lines refer to a different service member, nearly the entirety of the remainder of the examination report does appear to reference the Veteran himself. It appears to have correctly described his extensive contentions regarding his alleged stressors that he had described in submissions he had submitted to VA on numerous previous occasions. The stressors noted by this examiner include the stressor relating to the handling of human remains during his duties loading and unloading aircraft. The Board also emphasizes that it is this stressor that this VA-qualified psychologist determined was adequate to support the criteria for a diagnosis of PTSD and that it related to the Veteran's fear of hostile military or terrorist activity. It is significant that this report of stressor has no reference to the errant reports of deployments in Iraq in the late 2000s. Moreover, it was based on this stressor that the psychologist ultimately opined that the Veteran at least as likely as not had PTSD related to this in-service event. Although the opinion again relates to "multiple deployments," it is not absolutely clear that the examiner is referring to the errant Iraq references considering the Veteran's verified service records include service abroad during his period of active duty and include reserve service during the Gulf War period. (Continued on the next page) The Board therefore finds that, despite the reference to service in Iraq and Germany, the August 2020 opinion appears to include an adequate description of the Veteran's in-service stressor and relates his PTSD to that in-service stressor. The Veteran's claims file also include service personnel records that verify his duties included the loading and unloading of aircraft. Although an October 2018 internal VA memo determined there was insufficient evidence regarding the Veteran's specific unit with respect to whether or not human remains were transported during the Veteran's period of service, a reasonable person could have determined that the Veteran's testimony represented credible evidence that he had undergone these duties. In light of this evidence, the Board now finds that a reasonable person could have reviewed the claims file and determined there was credible evidence of an in-service stressor relating to the Veteran's verified duties of loading and unloading aircraft. Such a person could also determine that, although the August 2020 examiner erroneously included reports to post-1992 service including service in Iraq, the examiner correctly analyzed the Veteran's specific contention regarding a stressor of loading and unloading human remains. As such, the Board finds that it is not undebatable error to rely on the ultimately positive nexus opinion of that August 2020 examiner. As such, the Board does not find that the November 2020 decision clearly and unmistakably erred in determining that the criteria for service connection for PTSD were granted. The motion to revise that decision is denied. K. Marenna Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.