Citation NR: 9740243 Decision Date: 12/03/97 Archive Date: 12/12/97 DOCKET NO. 94-09 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Whether there was clear and unmistakable error (CUE) in the June 1958 rating decision which severed the grant of service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from January 1944 to May 1945. This appeal arises from rating decisions of the White River Junction, Vermont Regional Office (RO) which determined that new and material evidence had not been presented to reopen the veteran’s claim of service connection for a psychiatric disorder. It was further determined that a June 1958 rating decision which severed the grant of service connection for a psychiatric disorder did not constitute CUE. By decision of the Board of Veterans’ Appeals (Board) in January 1997, it was determined that new and material evidence had been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder and that claim was remanded to the RO for a de novo adjudication. By rating action in April 1997, service connection for a psychiatric disorder was granted; this is a full award of benefits for the claim of service connection for a psychiatric disorder on the appeal initiated by the notice of disagreement on that issue. See Holland v. Gober, No. 94- 1046 (U.S. Vet. App. October 8, 1997). Thus, the only issue remaining on appeal is whether there was CUE in the June 1958 severance of service connection for a psychiatric disorder. The Board also notes that a 10 percent rating was assigned for major depressive disorder in the April 1997 rating decision. The veteran was notified of this action by letter in July 1997. In the August 1997 informal hearing presentation, his representative raised the issue of whether a rating in excess of 10 percent was warranted for the psychiatric disorder. As that issue has not been developed or certified on appeal, it is referred to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred by failing to grant the benefit sought on appeal. It is maintained that it had to be, but was not, shown that the rating decision in June 1945 granting service connection for a psychiatric disorder was clearly and unmistakably erroneous. It is maintained that the evidentiary record in June 1945 did not demonstrate that a psychiatric disorder preexisted service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on a review of the relevant evidence, and for the following reasons and bases, it is the decision of the Board that there was no CUE in the June 1958 rating which severed service connection for a psychiatric disorder. FINDINGS OF FACT 1. Service connection for anxiety psychoneurosis was granted by June 1945 rating. 2. By rating action in October 1957, severance of service connection for anxiety psychoneurosis was proposed; the veteran received written notice of the proposed severance by letter on April 7, 1958. 3. The veteran did not timely respond to the proposal to sever, and by rating decision in June 1958, service connection for anxiety psychoneurosis was severed; the veteran did not timely appeal that decision. 5. The June 1958 rating decision severing service connection for a psychiatric disorder was supported by the evidence of record and the law was properly applied. CONCLUSION OF LAW The June 1958 rating decision which severed service connection for a psychiatric disorder was not clearly and unmistakably erroneous and remains final. 38 U.S.C.A. § 1159 (West 1991); 38 C.F.R. § 3.105 (1997); VAR § 1009(a), effective April 12, 1955; VAR § 1009(d), effective September 14, 1955; Veterans Administration Instruction No. 1, effective July 13, 1943. REASONS AND BASES FOR FINDINGS AND CONCLUSION It is claimed that the June 1958 severance of service connection for anxiety psychoneurosis constituted CUE. As a starting point, the Board must examine the severance regulations which were in effect in June 1958 to determine whether the veteran’s due process rights were adhered to. Under the applicable criteria in effect at the time of the June 1958 severance, a rating board or other adjudicative agency could reverse or amend a decision by the same or any other rating board or adjudicative agency where such reversal or amendment was obviously warranted by a clear and unmistakable error shown by the evidence in file at the time the prior decision was rendered. A rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error had the same effect as if the corrected decision had been made on the date of the reversed decision. VAR § 1009(a), effective April 12, 1955. Authority to sever service-connection upon the basis of clear and unmistakable error (the burden of proof being upon the Government), is vested in the regional offices. If in the light of all the accumulated evidence, it is determined that service-connection may not be maintained, it will be severed. The claimant will be immediately notified in writing of the contemplated action and the detailed reasons therefor and will be given a reasonable period, not to exceed 60 days from the date on which such notice is mailed to his last address of record, for the presentation of additional evidence pertinent to the question. VAR § 1009(d), effective September 14, 1955. A June 1945 rating action granted service connection for psychoneurosis, anxiety, as having been incurred during service. By subsequent rating action in October 1957, it was reported that the veteran’s military service extended from January 1944 to May 1945. The service medical records showed that the veteran was observed for an overactive mental condition and uncontrollable behavior. Psychoneurosis, hysteria was diagnosed. A similar episode of overt activity and uncontrollable behavior prior to enlistment was described. Precipitating emotional factors were involved in both instances. There was historical evidence of many neurotic stigmata of childhood including enuresis to age 13, dizziness, nailbiting, fainting spells, stuttering, somnambulism, temper disturbances, nightmares, and many fears. The veteran gave historical evidence of temper, crying spells and emotional instability plus feelings of inadequacy before service. Auditory hallucinations involving the voice of his mother since high school days were reported. Discharge from service was given with a determination that on the basis of history, the disorder existed prior to service, and was not incurred in the line of duty. It was determined in the October 1957 rating decision that the veteran, from the evidence, was markedly neurotic prior to service with episodes of emotional instability and was subject to auditory hallucinations. The episode of overt activity and uncontrolled behavior noted in service was duplicated pre-service. Aggravation of his basic condition as a result of military service on any permanent basis was not established. Severance of service connection was proposed under 1009(d), with the grant of service connection being held in clear and unmistakable error. In October 1957, the proposed severance of service connection was sent to the Director of Compensation and Pension. By letter from the RO on April 7, 1958, the veteran was informed that his disability claim had been reviewed on the basis of all the evidence of record, that the original grant of service connection for a nervous condition was in error, and that the severance of service connection for this condition was proposed. It was noted that the proposed action was based on a careful study of all the evidence of record which indicated that the condition existed prior to service and that it was not aggravated by service. The veteran was informed that he was being granted a period of 60 days from the date of the letter in which to forward any evidence which would tend to show that his psychiatric condition was incurred in or aggravated by service. In the absence of such evidence service connection would be severed at the expiration of sixty days. By rating action on June 12, 1958, service connection for a psychiatric disorder was severed due to clear and unmistakable error. It was noted that the veteran had been notified of the proposed action to sever service connection and had submitted no evidence in rebuttal. The veteran was notified of this action by letter dated on June 20, 1958. He was informed that he could appeal this action at any time within one year from the date of the letter. The above evidence shows that in compliance with the procedures set-forth in VAR § 1009(d), the veteran was notified in writing of the contemplated severance of the grant of service connection for a psychiatric disorder on April 7, 1958. He was also provided with the reasons for the contemplated severance. Following the expiration of a 60 day period, the grant of service connection was severed by rating decision in June 1958. The notice of the severance action sent to the veteran in June 1958 indicated that he could appeal at any time within a year. Based on these facts, the Board finds that the regulations controlling the severance of service connection in 1958 were met by the VA. As the veteran failed to file an appeal within one year following the June 1958 rating action, the June 1958 severance became final. Parenthetically, the Board notes that the grant of service connection in this case was in effect for more than 10 years. Under 38 U.S.C.A. § 1159, service connection for any disability which has been in effect for more than 10 years shall not be severed on or after January 1, 1962. As the grant and severance of service connection in this case predate January 1, 1962, the provisions of § 1159 protecting the grant of service connection do not apply. The Board now moves to the substance of the veteran’s claim: That the June 1958 severance of service connection constituted CUE. Initially, the Board notes that there is a presumption of validity to final decisions and, in the face of a claim of error, the presumption is even stronger. The rating decision at issue in this case may only be revised upon a showing of CUE. 38 C.F.R. § 3.105(a). In Russell v. Principi, 3 Vet.App. 310, 313-14 (1992), the United States Court of Veterans Appeals (Court) propounded the following three-pronged test to determine whether there was CUE in a prior rating: (1) either 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 the 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. In Fugo v. Brown, 6 Vet.App. 40, 43-3 (1993), the Court refined and elaborated on the Russell test as follows: ...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.... If a claimant-appellant wishes to reasonably raise clear and unmistakable error there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error ... that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. 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 clear and unmistakable error claim is undoubtedly a collateral attack, the presumption is even stronger. Reaffirming this standard in Luallen v. Brown, 8 Vet.App. 92 (1995), the Court stated: In short, CUE is a very specific and rare kind of error. There is a presumption of validity to final decisions and, in the face of a claim of error, the presumption is even stronger. To show CUE, the claimant must establish that the error is the kind which, if true, would be CUE on its face, i.e., beyond any reasonable dispute, or the claimant must provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Concerning the law in effect at the time of the rating action in June 1945, Veterans Administration Instruction No. 1 (effective July 13, 1943) noted that every person employed in the active military or naval service shall be taken to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to acceptance and enrollment and was not aggravated by such active military or naval service. Sound condition when examined, accepted, and enrolled for service may be rebutted only by notation of defects, infirmities, or disorders at time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease, though not noted, existed prior to acceptance and enrollment. Clear and unmistakable means obvious or manifest. Accordingly, evidence which makes it obvious or manifest, that the injury or disease under consideration existed prior to acceptance and enrollment for service will satisfy the requirements of the statute. Regardless of the period of war service, medical judgment alone, as distinguished from well established and accepted medical principles, is not sufficient to rebut sound condition at the time of entrance into active military service, nor will admitted history of prior disease by the veteran or members of his family suffice, although they may serve as leads for further development. Nonetheless, the provisions were subject to the following: There are certain medical principles so well and universally recognized as definitely to constitute fact, and when in accordance with these principles existence prior to entrance into service is established, no further additional or confirmatory facts are necessary. It was determined in the June 1958 rating decision, based on all the evidence of record, that the veteran’s psychiatric disability preexisted service and was not aggravated during service. The service medical records show that the veteran was clinically evaluated as normal on the December 1943 entrance examination. When he was hospitalized in April 1945, numerous neurotic stigmata of childhood were reported. The assessment showed that the veteran had always been bashful, seclusive, and emotionally unstable. He had insisted that he had never been happy for very long, suffered auditory hallucinations, and he claimed a mental lapse of more than three days at the time of the current admission. He had a similar spell as a senior in high school. The veteran was noted as having few complaints at that time and due to long standing maladjustment, further satisfactory service adjustment was not considered possible. In May 1945, a Board of Medical Survey determined that there was no evidence of a psychosis. The veteran was considered to be basically hysterical and poor service material. The diagnosis was psychoneurosis, hysteria which was not incurred in the line of duty, existed prior to enlistment, and was not aggravated by service. It was the opinion of the Medical Board that the veteran was not qualified for retention in the reserve and further hospitalization was not necessary. In sum, following an extended period of hospitalization during service in April and May 1945, a report of hospitalization and a Board of Medical Survey concurred in the assessment that the veteran suffered from psychoneurosis, hysteria, which preexisted service and had not been aggravated during service. The June 1958 rating action concluded that there was clear and unmistakable evidence sufficient to base a determination that the veteran’s preexisting neurosis had not been aggravated during service. Thus, the June 1958 severance of service connection was both factually plausible and based on a proper application of the law in effect at that time. The veteran’s CUE claim is insufficient to overcome the presumption of validity of the June 1958 severance action. Accordingly, that action must remain standing. ORDER The appeal to establish that there was clear and unmistakable error in the June 1958 rating decision which severed service connection for a psychiatric disorder is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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. - 2 -