BVA9503599 DOCKET NO. 92-06 597 )DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Whether there was clear and unmistakable error in a rating decision of October 27, 1983, in failing to grant service connection for a left knee disability. 2. Whether there was clear and unmistakable error in a rating decision of October 27, 1983, in failing to grant service connection for a skin disorder. 3. Whether there was clear and unmistakable error in a rating decision of October 27, 1983, in failing to grant service connection for residuals of a head injury, including headaches. 4. Entitlement to an effective date earlier than June 16, 1990, for an award of service connection and a total schedular evaluation for post-traumatic stress disorder (PTSD) based on clear and unmistakable error in rating decisions in 1983 and 1984. REPRESENTATION Appellant represented by: Maine Bureau of Veterans' Services WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from October 1965 to September 1967. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a January 15, 1991, rating decision by the Togus, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal was remanded to the RO on July 24, 1992, for additional evidentiary development, including procurement of post service examination and treatment records and physical, psychiatric, and psychological examinations of the veteran. The material obtained pursuant to the remand was reviewed by a rating board on February 16, 1992; service connection was granted for PTSD, and a 100 percent rating was assigned from June 16, 1990. The veteran has also appealed a February 19, 1993, rating decision which denied an effective date earlier than June 16, 1990, for the service connection grant for PTSD. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a left knee disorder as a result of an injury sustained in service in March 1966 and that he has headaches caused by a head injury received in June 1966. He claims that he has a skin disorder manifested by bumps on the skin which began during service. He alleges that the VA rating board decision of October 27, 1983, which denied service connection for these disorders was clearly and unmistakably erroneous. The veteran disputes assertions in the statement of the case to the effect that service medical record did not documents these disorders. Noting that the report of medical history filled out at separation contains a number of corrections, he argues that these notations, if "uncorrected," would be evidence of the disorders in service, particularly the headaches and a head injury. The veteran further contends that the award of service connection for PTSD should have been made effective from the date following discharge from service. He argues that the October 1983 rating decision, which initially denied service connection, and the subsequent rating decisions of November 1983, June 10, 1984 and August 1984, which refused to reopen the claim, were clearly and unmistakably erroneous. He alleges that the evidence of record at the time of the initial adjudication, particularly the submission of private medical evidence in 1984 showing a diagnosis of PTSD, was sufficient to raise a well-grounded claim and that by failing to obtain additional data to corroborate the contentions regarding stressors for PTSD and by failing to order a VA psychiatric examination, the rating board did not discharge its duty to assist in the development of the evidence. He argues that the rating board substituted its own unsubstantiated diagnostic opinion for that of the private physicians who had submitted statements. He argues that the RO neglected to apply the provisions of VA Manual M21-1 § 50.45(e) [currently § 7.46] which specify that if the evidence shows that a veteran engaged in combat with the enemy, no further development of the evidence of a combat stressor is necessary. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims of clear and unmistakable error in a final rating decision which denied claims for service connection for a left knee disorder, a skin disorder, and residuals of a head injury, including headaches, are well grounded. It is the further decision of the Board that the veteran has not met his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of clear and unmistakable error in rating determinations in 1983 and 1984 such as to warrant the assignment of a retroactive effective date for an award of service connection and a total schedular evaluation for PTSD is well grounded. FINDINGS OF FACT 1. Service connection for a left knee disability, a skin disorder, and residuals of a head injury, including headaches, was denied by a rating decision of October 27, 1983. 2. The veteran did not appeal the rating decision of October 27, 1983. 3. The veteran has not presented competent evidence showing that the correct facts were not before the rating board in October 1983 or that the statutory or regulatory provisions then in effect were incorrectly applied. 4. Service connection for PTSD was denied by a rating decision of October 27, 1983; subsequent rating decisions of November 16, 1983, December 8, 1983, June 19, 1984, and August 14, 1984, held that no new and material evidence sufficient to reopen the claim for service connection for PTSD had been received. 5. The veteran did not appeal these determinations. 6. By a rating decision of February 16, 1992, service connection was granted for PTSD and a total (100 percent) evaluation was assigned from June 16, 1990, the date of receipt of evidence deemed to be new and material. 7. The veteran has not submitted competent evidence establishing that the correct facts were not before the rating board in 1983 or 1984 or that the statutory or regulatory provisions then in effect were incorrectly applied. 8. The absence of further evidentiary development before June 16, 1990, with respect to the occurrence of a stressor for PTSD in service was in accordance with the adjudication policy in effect at that time. CONCLUSIONS OF LAW 1. The claim of clear and unmistakable error in an October 27, 1983, rating decision which denied service connection for a left knee disability is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991). 2. The claim of clear and unmistakable error in an October 27, 1983, rating decision which denied service connection for a skin disorder is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991). 3. The claim of clear and unmistakable error in an October 27, 1983, rating decision which denied service connection for residuals of a head injury, including headaches, is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991). 4. The claim for an effective date earlier than June 16, 1990, for an award of service connection and a total schedular evaluation for PTSD on the basis of clear and unmistakable error in multiple rating decisions in 1983 and 1984 is not well grounded. 38 U.S.C.A. §§ 5107(a), 5110, 7104 (West 1991); 38 C.F.R. § 3.400 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background A VA Form 21-526, Application for Compensation or Pension, was received from the veteran in September 1983 which contained a claim for service connection for delayed stress neurosis and a skin rash. In an accompanying statement, the veteran indicated a desire to include left knee problems and headaches in his claim. He claimed that the knee problems resulted from a March 1966 incident in which he had to sleep in the back of an open jeep in the snow. He claimed that he had received a head injury in June 1966 while helping to construct a mess hall. The RO obtained an admission summary showing that the veteran had been admitted to a VA hospital on September 7, 1983, for complaints of being "a bundle of nerves" and feeling depressed since February 1983, with mood swings from normal to depressed. He reported having had symptoms since his tour in Vietnam in 1966. The diagnosis on Axis I was major depressive episode and generalized anxiety disorder with psychophysiological gastrointestinal symptoms. Service medical records were also requested. Service medical records received in October 1983 were limited to the reports of examinations performed at induction and separation. On a September 1965 report of medical history for induction the veteran reported having had frequent or severe headaches in the past; he denied skin or knee problems. Examination was negative. On an August 1967 report of medical history at separation the veteran indicated a history of frequent or severe headache but denied skin diseases or knee problems. He denied a history of nervous trouble of any sort and also denied depression or excessive worry, frequent or terrifying nightmares or frequent trouble sleeping; next to the check marks for negative answers regarding these symptoms, other check marks which appear to have originally indicated affirmative responses were crossed out. The claim was reviewed by a rating board on October 27, 1983, at which time service connection was denied for a left knee disorder, a skin disorder, head injury residuals, headaches, and a psychiatric disorder. The veteran was notified of his right to appeal. The veteran's VA Form 20, Enlisted Qualification Record, was reviewed by a rating board on November 16, 1983. The denial of service connection for a psychiatric disorder was continued and the veteran was so notified. Received in the VA adjudication division of the RO in December 1983 was the final hospital summary from the above-referenced hospitalization, which ended on November 7, 1983; the final diagnoses were the same. The summary noted complaints of subcutaneous nodules which had been present for some time in various locations throughout the body. A biopsy showed a lesion that was described as a lipoma. The veteran was also evaluated for complaints of painful knees. X-rays were within normal limits. There was a diagnosis of possible faulty tracking of the patella. The claim for service connection for a psychiatric disorder was reviewed by a rating board on December 8, 1983, in light of receipt of this report. The denial was confirmed and the veteran was so notified. Received in February 1984 was a statement from a VA Social Work Service employee to the effect that the veteran was being followed on an outpatient basis for psychiatric complaints which were "service connected." The veteran was notified by a letter dated March 13, 1984, that new and material evidence would be required to reopen his previously denied claim. Received in May 1984 was a statement from a therapist at the Aroostook Mental Health Center which contained a diagnosis of PTSD. An admission summary dated in January 1984 was attached. Additional records from this facility dated from April to June 1984 were received in June 1984. This material was reviewed by a rating board on June 19, 1984; it was found that a diagnosis of PTSD had not been established and that stressors for PTSD had not been described or verified. The veteran was notified of this determination and of his right to appeal. VA outpatient treatment records covering the period from July 1983 to August 1984 were reviewed by a rating board on August 14, 1984. The denial of service connection for a psychiatric disorder was confirmed and the veteran was so notified by letter on August 28, 1984. No notice of disagreement with any of the foregoing rating actions was received. Received from the veteran's representative on June 16, 1990, was a memorandum requesting reconsideration of the claim for service connection for PTSD and alleging clear and unmistakable error in the rating decision of October 27, 1983, with respect to all of the claims adjudicated. Subsequently received was the report of a VA hospitalization in June and July 1990 for psychiatric symptoms diagnosed as PTSD. The hospital report noted a complaint of left knee pain. An X-ray of the knee was negative for bone or joint abnormality. A VA psychiatric examination was performed in October 1990. The diagnosis was PTSD. A VA skin examination was performed, at which time the veteran complained of lumps on the arms, abdomen and back and reported having undergone a biopsy of one of the lumps many years earlier. The examiner concluded that the appearance and texture of the lumps was consistent with lipomas. By a decision of January 15, 1991, a rating board held that clear and unmistakable error in the rating decision of October 27, 1983 was not shown. The veteran submitted a notice of disagreement with this determination. Additional development of the evidence with respect to a stressor for PTSD was performed. The appeal was remanded by the Board on July 24, 1992. Evidence received after the remand included the report of various VA hospitalization and outpatient records showing treatment for PTSD. In a hospitalization in June and July 1991 for PTSD, it was reported that the veteran had limitation of motion in the lower extremities due to degenerative joint disease. A a VA examination in October 1992, performed pursuant to the Board remand, the veteran complained of constant pain of the knee with aching after sitting with the knee flexed or after walking. A diagnosis of moderately severe chondromalacia patellae of the left knee was recorded. A VA skin examination was performed in January 1993. The veteran complained that growths on the skin had begun to develop in late 1968 or 1969 about the arms, legs, back and chest area. The clinical impression was multiple lipomas confirmed by prior biopsy. II. Left Knee Disorder The law provides that service connection may be granted for disability which was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (wartime), 1131 (peacetime) (West 1991). If a disorder is not shown to have been chronic during service, continuity of symptomatology after separation is required to support the claim. 38 C.F.R. § 3.303(b) (1993). However, the preliminary requirement for establishing entitlement to any VA benefit is that the applicant submit a claim which is sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Appeals (the Court) has defined a well-grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation." Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In claims for retroactive entitlement based on clear and unmistakable error in prior final adjudications, as in any other claim, the veteran bears the initial burden of submitting a well-grounded claim. Newman v. Brown, 5 Vet.App. 99 (1993). The Board finds that the veteran has not presented a well-grounded claim of clear and unmistakable error in the rating decision of October 27, 1983. The rating decision of October 27, 1983, which denied the veteran's initial claim for service connection for a left knee disability became final by virtue of the veteran's failure to appeal within one year after receiving notice of the denial. 38 U.S.C.A. § 4005, as then in effect; 38 C.F.R. § 3.104. The determination as to whether that rating decision was erroneous is controlled by 38 C.F.R. § 3.105(a) (1993), which provides as follows in pertinent part: Previous determinations on which an action was predicated, including decisions of service connection...and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of the prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. The parameters of 38 C.F.R. § 3.105(a) were defined by the Court in Russell v. Principi, 3 Vet.App. 310 (1992). Noting that the regulation referred to "determinations on which an action was predicated," it was found to necessarily follow that a "clear and unmistakable error must be the type of error which, had it not been made, would have manifestly changed the outcome at the time it was made. The Court stated (at pp. 313-14) that: [T]he words "clear and unmistakable error" are self-defining. They are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. A determination that there was a "clear and unmistakable error" must be based on the record and the law that existed at the time of the prior agency of original jurisdiction or BVA decision. Once a determination is made that there was a "clear and unmistakable error" in a prior decision that would change the outcome, then that decision is revised to conform to what the decision should have been. (Second emphasis added.) In so holding, the Court made a distinction between clear and unmistakable error and harmless error. "Errors that would not have changed the outcome are harmless; by definition, such errors do not give rise to the need for revising the previous decision." Id. at 313. In claims involving an issue of clear and unmistakable error, a mere disagreement as to how the facts were weighed or evaluated does not constitute a well-grounded claim. Russell v. Principi, 3 Vet.App. 310, 313 (1992): In order for there to be a valid claim of "clear and unmistakable error," 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. The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated. Id. at 313 (emphasis added), as quoted in Newman v. Brown, 5 Vet.App. 99, 102 (1993). The Board finds that the veteran has not presented a well-grounded claim of clear and unmistakable error in the rating decision of October 27, 1983. Medical evidence dated since about 1990 shows that he has a left knee disorder diagnosed variously as chondromalacia or degenerative joint disease and that pain and limitation of flexion were present during the VA hospitalization of September 1983. However, no references to knee abnormality are documented in the available service medical records; examination at separation was negative, and the veteran specifically denied a history of knee problems. The veteran's disagreement with the October 1983 rating decision involves how the evidence was weighed or evaluated. There is no allegation that specific evidence was available but not considered or that applicable law or regulations in existence at that time were not applied. The veteran claims instead that the clear and unmistakable error consists of failure to develop the claim adequately by scheduling a VA examination. He argues also that VA regulations, particularly 38 C.F.R. § 3.303(a), were not applied. However, broad brush allegations of "failure to follow the regulations" or "failure to give due process" or any other general nonspecific claim of "error" can never rise to the stringent definition of clear and unmistakable error enunciated by the Court. In Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993), the Court stated: [M]erely to aver that there was CUE in a case is not sufficient to raise the issue. Stated another way, while the magic incantation "clear and unmistakable" need not be recited in haec verba, to recite it does not suffice, in and of itself, to reasonably raise the issue. It must always be remembered that [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. Thus, even where the premise of the error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. The veteran has not alleged, and the record does not document, specific facts establishing that the result of the adjudication would have been manifestly different if a VA examination had been performed. The Board will not speculate as to what an examination would have disclosed, had one been performed. In any case, the Court has held specifically that "[t]he VA's breach of the duty to assist cannot form a basis for a claim of [clear and unmistakable error] because such a breach creates only an incomplete rather than an incorrect record." Caffrey v. Brown, 6 Vet.App. 377 (1994). The Board finds that no valid claim of clear and unmistakable error as to the claim for service connection for left knee disability has been raised. In the absence of a well-grounded clear and unmistakable error claim, the Board does not have jurisdiction to adjudicate such issue. Boeck v. Brown, 6 Vet.App. 14 (1993). III. Skin Disorder The evidence documents the presence of multiple lipomas since 1990, when a biopsy was performed. The veteran claims that the "bumps" have been present since 1967 or 1968 but there is no documentation to substantiate this allegation. When the issue of entitlement to service connection was adjudicated by the rating board in October 1983, no medical evidence showing a skin disorder was of record. The report of examination for separation was negative, and the medical history form executed by the veteran contained a notation indicating that he had never had skin disease. No skin abnormality was reported on an examination for admission into a VA hospital in September 1983. The veteran has the burden of submitting evidence sufficient to establish that the claim of clear and unmistakable error in the October 1983 rating decision with respect to the issue of service connection for a skin disorder is well grounded. Newman, 5 Vet.App. at 102. In this regard, the veteran has made no specific allegations with respect to the legal or factual basis by which he believes service connection for a skin disorder should have been granted. He has cited no specific facts which were not before the adjudicator or substantive law which was incorrectly applied. He has argued that the claim should have been developed, but he has submitted no evidence which would have shown that development of the evidence would have elicited documented facts sufficient to warrant allowance of the claim. In any case, the failure to develop a record does not constitute clear and unmistakable error. Caffrey, 6 Vet.App. at 383. The Board therefore finds that the claim of error in the October 1983 denial of service connection for a skin disorder is not well grounded and that the Board does not have jurisdiction to decide this matter. Boeck, 6 Vet.App. at 17. IV. Residuals of a Head Injury, Including Headaches The evidence reviewed by the rating board in October 1983 with respect to a head injury in service consisted of service medical records and the report of a September 1983 VA hospitalization, neither of which corroborated the occurrence of a head injury in 1966 or current residuals thereof. The examination performed at the time of separation from service was negative for neurological abnormalities. The veteran's allegations with respect to error parallel those discussed above and must be rejected for the same reasons. One additional contention made by the representative early in the veteran's appeal is to the effect that service medical records are not really negative regarding head trauma inasmuch as the report of medical history at separation contains ambiguous inscriptions indicating that answers regarding a history of head trauma and the presence of headaches had been changed. However, even if the Board were to accept this interpretation of the apparent changes, the allegation amounts to no more than a disagreement as to how the evidence considered by the rating board was weighed and evaluated. Such allegations can never rise to the level of clear and unmistakable error. Russell, 3 Vet.App. at 313; Newman, 5 Vet.App. at 102. The Board therefore finds that the claim of error in the denial of service connection for residuals of a head injury, including headaches, is not well grounded and that the Board does not have jurisdiction to adjudicate this issue. Boeck, 6 Vet.App. at 17. V. Effective Date of PTSD Award The allegations of error with respect to the adjudication of the claim for service connection for PTSD are more extensive inasmuch as they relate not only to the rating decision of October 27, 1983, but to subsequent rating actions in December 1983, June 1984, and August 1984, when additional evidence regarding the veteran's claimed psychiatric disability was found not to constitute new and material evidence sufficient to reopen the service connection claim. The Board finds that the claim of clear and unmistakable error in these rating decisions is not well grounded. The veteran has alleged no circumstances which would suggest that the true facts were not before the rating board or that the statutory or regulatory provisions in existence at that time were incorrectly applied. His allegations amount to a disagreement as to how the documented facts were weighed or evaluated. As noted, such allegations do not properly raise a claim of clear and unmistakable error. Russell, 3 Vet.App. at 313; Newman, 5 Vet.App. at 102. In any case, the evidence then of record contained no medical reports suggesting that the veteran's psychiatric symptoms were related to military service, including Vietnam combat. The earliest reference to a possible connection between military service and current symptoms is found in a February 1984 report from a VA social worker. This report as well as medical statements from a therapist at the Aroostook Mental Health Center dated in May and June 1984 were of record at the time of the rating decisions of June and August 1984. The allegations concerning the development of the evidentiary record through the scheduling of a current psychiatric examination and procurement of documentation of stressor events in service are, for the reasons discussed above, insufficient to raise a proper claim of clear and unmistakable error. See Caffrey, 6 Vet.App. at 383. However, the claim with respect to PTSD differs from the others in that it centers in part on the question of whether the provisions of VA Adjudication Manual M21-1 with respect to the evidence required to document a stressor for PTSD were properly applied. See M21-1, part I § 50.45e, as in effect in 1983 and 1984; and § 7.46, as currently in effect. The provisions then in effect were as follows: Development for PTSD. A history of a stressor as related by the veteran is, in itself, insufficient. Service records must support the assertion that the veteran was subjected to a stressor of sufficient gravity to evoke symptoms in almost anyone. The existence of a recognizable stressor or accumulation of stressors must be supported. It is important the stressor must be described as to its nature, severity and date of occurrence. In March 1991 the language of this section was revised to reflect a liberalization of the requirements for documenting stressors for PTSD. After the phrase "Development for PTSD", the following language was inserted: If the evidence shows the veteran engaged in combat with the enemy and the claimed stressor is related to combat, no further development for evidence of a stressor is necessary. Since the language relieving a combat veteran of the requirement to provide documentation of the individual stressors was not in existence at the time of any of the rating decisions in question, the allegation that the lower evidentiary standard was not applied cannot raise a proper claim of clear and unmistakable error. Leaving aside the question of whether the manual provisions relating to PTSD at that time or in the future created substantive legal rights notwithstanding their nonregulatory status, see Fugere v. Derwinski, 1 Vet.App. 103 (1990), the veteran has alleged no error of misapplication of the then-existing law or regulations which would alter the outcome of these adjudications. In addition, even if the revised manual provision had been in effect in 1983 and 1984, there remained a conflict in the medical evidence concerning the proper diagnosis for his psychiatric symptoms. The Board is not required to speculate as to what further psychiatric testing to reconcile the private and VA diagnoses of record at that time would have disclosed. This type of dispute involves the very weighing and evaluation of evidence which the Court has ruled out as a proper basis for a claim of clear and unmistakable error. The Board therefore finds that the veteran's claim of error in the rating decisions of 1983 and 1984 with respect to PTSD are not well grounded. As such, the Board does not have jurisdiction to adjudicate such claim. Boeck, 6 Vet.App. at 17. ORDER The claim of clear and unmistakable error in a rating decision of October 27, 1983, in failing to award service connection for a left knee disorder, a skin disorder, and residuals of a head disorder, including headaches, is not well grounded and is dismissed. The claim for an earlier effective date for an award of service connection for PTSD based on clear and unmistakable error in rating decisions in 1983 and 1984 is not well grounded and is dismissed. BARBARA B. COPELAND Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.