Citation Nr: 21031408 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 12-02 763 DATE: May 21, 2021 ORDER Entitlement to an effective date prior to November 21, 1997 for the award of a 100 percent rating for schizoaffective disorder, to include whether the June 1994 rating decision may be revised or amended on the basis of clear and unmistakable error (CUE), is denied. FINDINGS OF FACT 1. In an unappealed June 1994 rating decision, service connection was awarded for schizoaffective disorder and assigned a 50 percent rating, effective January 1, 1994; and the final October 1995 rating action denied a rating in excess of 50 percent for the Veteran's psychiatric disorder. 2. In assigning a 50 percent disability rating for the Veteran's psychiatric disability, the June 1994 rating decision was consistent with and reasonably supported by the evidence then of record, and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. 3. On November 21, 1997, VA constructively received a report of hospitalization, which was reasonably construed as an informal claim for an increased rating for schizoaffective disorder; it was not factually ascertainable one year prior to this date that the Veteran's service-connected schizoaffective disorder increased in severity to meet the criteria for a higher rating. CONCLUSION OF LAW The criteria for an effective date prior to November 21, 1997, for the assignment of a 100 percent disability rating for schizoaffective disorder, to include whether the June 1994 rating decision assigning a 50 percent disability was clearly and unmistakably erroneous, have not been met. 38 U.S.C. §§ 5109A, 5110, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104 (a), 3.105(a), 3.155, 3.160(d), 3.400, 20.302, 20.1104 (in effect prior to March 24, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the Navy from March 1989 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in December 2014 to schedule a Board hearing. The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in April 2019. A transcript of the proceeding has been associated with the claims file. Subsequently, the Board again remanded this matter in July 2019 and December 2020 so that the RO could adjudicate the inextricably intertwined issue of whether there was clear and unmistakable error in the June 1994 rating decision for failing to assign a 100 percent rating for the Veteran's service-connected schizoaffective disorder from January 1, 1994. The RO adjudicated this matter and issued a supplemental statement of the case in December 2020. Thus, the Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268(1998). The Board recognizes that in a January 2021 statement the Veteran indicated that there were police records during the period from 1994 to 1996 that showed he was admitted to the hospital involuntarily for his psychiatric disorder. It does not appear that these records have been obtained. Nevertheless, as the records were not of record prior to current November 1997 effective date, they cannot be the basis of an earlier effective date. Likewise, as they were not of record at the time of the June 1994 rating decision, these records cannot be the basis for CUE. The Veteran did not previously identify these records. As such, these records are irrelevant to the issue on appeal. Entitlement to an effective date prior to November 21, 1997 for the award of a 100 percent rating for schizoaffective disorder The Veteran is seeking an effective date prior to November 21, 1997 for the grant of a 100 percent disability rating for his service-connected schizoaffective disorder. The Veteran has asserted that his psychiatric disability met the criteria for a 100 percent rating from the award of service connection, January 1, 1994. The law pertaining to the effective date of a VA claim for increase in disability mandates that unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The pertinent statute then goes on to specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). Effective March 24, 2015, VA amended its regulations to require all claims be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. As the Veteran's claim was received by VA prior to that date, the former regulations apply, as provided below. In effect prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). Following notification of an initial review and adverse determination by the RO, a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C. § 7105. Applicable regulations provide that if new and material evidence was received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156 (b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156 (b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156 (a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). By way of background, the RO issued an initial rating decision on June 21, 1994. In that decision, the RO granted service connection for schizophreniform disorder and assigned a 50 percent, effective January 1, 1994. That same month, the Veteran was advised of the decision and his appellate rights. However, he did not enter a notice of disagreement as to the assigned evaluation for his psychiatric disability. Nevertheless, the record shows that new and material evidence regarding the matter was received within one year of the issuance of the June 1994 rating decision. In this regard, the Veteran submitted a statement in February 1995 asserting that he could not work due to his psychiatric disability. The following month, additional VA treatment records were obtained. The Veteran also submitted an application for a total disability rating based on individual unemployability. Subsequently, in a May 1995 rating decision, the RO readjudicated the claim, but continued to deny a rating in excess of 50 percent. The Veteran also did not initiate an appeal from this determination. However, additional evidence was again submitted within one year, including information from the Veteran's employer. Nevertheless, again, the RO continued to deny a rating in excess of 50 percent in an October 1995 rating decision. The Veteran did not initiate an appeal from this determination and new and material evidence was not submitted within one year. Therefore, the October 1995 rating decision is final. 38 U.S.C. § 7105(c) (West 1991) [38 U.S.C. § 7105(c) (West 2014)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1995) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2021]. On November 21, 1997, VA constructively received a report of hospitalization, which was reasonably construed as an informal claim for an increased rating for schizoaffective disorder. Importantly, the finality of a prior rating decision could be vitiated by a finding of clear and unmistakable (CUE) in that decision (see Routen v. West, 142 F.3d 1434, 1438 (Fed. Cir. 1998) (listing CUE as one of three exceptions to the rules regarding finality and effective dates). Here, in September 2009, December 2010, and September 2011 correspondence, the Veteran asserted that there was clear and unmistakable error in the June 1994 RO rating decision with regard to the assignment of a 50 percent disability evaluation for his psychiatric disability. 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 clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating 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. §§ 3.104(a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14. To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. The relevant laws and regulations in effect in 1994 with respect to assignment of a disability evaluation for a psychiatric disability have since been revised. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). Under the rating criteria in effect in June 1994, a 50 percent evaluation is warranted with considerable impairment of social and industrial adaptability. A 70 percent disability evaluation requires lesser symptomatology than the 100 percent evaluation as to produce severe impairment of social and industrial adaptability. A 100 percent disability evaluation requires active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 38 C.F.R. Part 4, Code 9206 in effect prior to November 7, 1996. Regulations in effect in 1994 also provided that, when the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. 38 C.F.R. § 4.16(c) (1994). ROs are not required to specifically mention in their rating decisions the evidence they considered; instead, it is presumed that they reviewed all relevant evidence in the claims file. Gonzales v. West, 218 F.3d 1378, 1380 (Fed. Cir. 2000). While the Board acknowledges that the RO did not specifically refer to all of the applicable laws and regulations, the Board notes that the absence of a specific reference to, or failure to cite, a controlling regulation in a rating decision does not mean it was not considered. VAOPGCPREC 6-92 at para. 6 (Mar. 6, 1992). Failure to discuss regulations does not constitute CUE as there is nothing to suggest that, had there been a written discussion of such regulations, a different result would have ensued. Crippen, 9 Vet. App. at 421. In rendering the June 1994 decision, the RO primarily relied on service treatment records and an April 1994 VA examination report. The RO determined that this evidence did not show that the Veteran met the criteria for a 70 percent rating or higher. Service treatment records did show that the Veteran was found unfit for duty to his schizophreniform disorder with good prognostic features. Service treatment records indicated that the symptoms were acute and appeared to be stress related due to change in duty station and marital discord. The April 1994 examination report showed that the Veteran had been unemployed since his discharge, and claimed he could not find a job. The examiner noted that the Veteran was irrelevant and inappropriate. He also had a flattened effect. The examiner observed that the Veteran was recently hospitalized for hearing voices, felt that people were angles and demons and being a danger to himself. However, the examiner noted that the Veteran was now on lithium and seemed to be much more steady in his moods. Moreover, the Veteran denied suicidal ideation and thought that life was worth it. The examiner's clinical impression was that the Veteran was suffering from schizophrenia due to flatness of affect, inappropriateness, auditory hallucinations, paranoid thinking, etc. The Veteran's spouse corroborated his symptoms. The examiner concluded that the Veteran could be suffering from a schizoaffective disorder or manic disorder, mixed. Time will corroborate either diagnosis and it seems that prognosis should be guarded. The examiner found that the Veteran was capable of handling his funds. Based on this evidence, the award of a 50 percent disability rating was not erroneous given the evidence at that time. The award was factually supportable by the record at that time. In this regard, a 50 percent rating accounted for considerable impairment of social and industrial adaptability. The RO weighed the evidence and found that the Veteran's symptoms did not warrant a higher rating. The Board notes that April and May 1994 VA treatment records were not addressed in the June 1994 rating decision, but are considered to have been constructively part of the record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Nevertheless, despite this failure to review or mention these records, this failure does not meet the criteria for CUE, as the error is not undebatable and would not have changed the outcome at the time it was made. These VA records detail the Veteran's regular treatment for his service-connected psychiatric disorder. These records show that the Veteran was unemployed, but looking for a job. The records document similar symptoms as the VA examination and note that the Veteran was being treated with lithium. Simply put, the failure to obtain or consider these VA treatment records in the June 1994 rating decision was not outcome-determinative, and it is not an error that would manifestly have changed the outcome of the prior decision. See Damrel, supra; Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997). It is apparent that the adjudicators reviewed the evidence of record in making a determination as to the disability rating assigned. Moreover, the RO applied the correct statutory and regulatory provisions to the correct and relevant facts. Importantly, judgments as to the credibility and probative value of individual items of evidence are inherent in the function of VA adjudicators. In the instant case, the Veteran is primarily claiming CUE based on the evaluation of the evidence by the RO. However, a disagreement with how a prior adjudicator evaluated the facts does not establish CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995); Russell, supra. Accordingly based on the evidence of record, the Board is satisfied that the RO decision was a fair exercise in rating judgment. Although the Veteran contends that the evidence was adequate at this time for a higher rating, for the above reasons, the Board does not find that CUE was committed. Indeed, the crux of this assertion amounts to a disagreement with how the evidence was weighed. Such a contention does not constitute CUE. The Board recognizes that the Veteran has subsequently submitted statements as well as testified as to his symptoms at the time of the June 1994 rating decision. He has also indicated that there are outstanding police reports that show the severity of his disability during this period. Nevertheless, none of this evidence can be the basis for CUE as it was not in the record at the time of the rating decision. Again, a CUE claim must be based on the evidence in the record when the prior decision was rendered. Pierce v. Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001). In sum, the Board concludes that the correct facts, as known at the time, were before VA adjudicators who awarded a 50 percent disability rating and that the statutory and regulatory provisions extant at the time were correctly applied. The Board finds that there was no error which was undebatable and of the sort which, had it not been made would have manifestly changed the outcome at the time it was made. The Board now turns to whether a formal or informal claim was filed after the October 1995 final decision and prior to the November 21, 1997 informal claim. In this regard, there is no indication in the record of any intent to file a claim for an increased disability evaluation for service-connected schizoaffective disorder until the receipt of the informal claim that was found to be constructively received by VA on November 21, 1997. Specifically, subsequent to the October 1995 rating decision and prior to November 21, 1997, there is no communication from the Veteran or an authorized individual acting on his behalf, to include his representative, evidencing an intent to apply for an increased rating for his schizoaffective disorder. Therefore, the Board finds that the Veteran's claim for an increased rating for his schizoaffective disorder was first received by VA on November 21, 1997. As such, the focus of the Board's review becomes whether it is factually ascertainable that the Veteran experienced an increase in his service-connected schizoaffective disorder during the year prior to November 21, 1997 to warrant a higher rating. See Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997) (38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) are applicable only where the increase precedes the claim (provided also that the claim is received within one year after the increase)). In making this determination, the Board will review the entirety of the evidence of record. See Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). The Board has considered whether it was factually ascertainable that the Veteran's service-connected schizoaffective disorder had increased in severity in the year prior to November 21, 1997. However, there is simply no evidence during this period showing that the Veteran suffered from occupational and social impairment with deficiencies in most areas to warrant a 70 percent or 100 percent rating under the current criteria in effect since November 7, 1996. See 38 C.F.R. § 4.130, Diagnostic Code 9211. In this regard, there is no medical or lay evidence addressing the severity of the Veteran's disorder during this period. In sum, absent any evidence beyond the Veteran's general assertion that his schizoaffective disorder met the criteria prior to November 21, 1997, the Board finds that it was not factually ascertainable that his service-connected schizoaffective disorder had increased in severity in the year prior to November 21, 1997, to warrant a 100 percent rating pursuant to under 38 C.F.R. § 4.130, Diagnostic Code 9211. In conclusion, based on the analysis above, an effective date prior to November 21, 1997, for a 100 percent disability rating for service-connected schizoaffective disorder is not warranted. In denying an earlier effective date, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 ; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.