Cue - Failing To Adjudicate The Claim

[carlie]

Citation Nr: 0505032

Decision Date: 02/23/05 Archive Date: 03/04/05

DOCKET NO. 03-32 661 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Nashville,

Tennessee

THE ISSUES

1. Whether clear and unmistakable error was committed in the

March 25, 1955 rating decision assigning a 10 percent

disability evaluation for an anxiety reaction.

2. Whether clear and unmistakable error was committed in the

March 25, 1955 rating decision by not granting entitlement to

service connection for the residuals of damage to cranial

nerve VII.

3. Whether clear and unmistakable error was committed in the

March 25, 1955 rating decision by not granting entitlement to

service connection for the loss of teeth.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant-veteran

ATTORNEY FOR THE BOARD

Kristi Barlow, Counsel

INTRODUCTION

The veteran served on active duty from June 1951 to November

1953, including combat service during the Korean conflict.

The veteran was a prisoner of war for approximately thirteen

months.

This matter comes before the Board of Veterans' Appeals (BVA

or Board) on appeal from a January 2003 rating decision of

the Department of Veterans Affairs (VA) Regional Office (RO)

in Nashville, Tennessee, which declined to find that clear

and unmistakable error had been committed by the RO in a

March 25, 1955 rating decision with respect to the issues set

out above.

FINDINGS OF FACT

1. The correct facts, as they were known at the time of the

March 1955 rating decision, were before the adjudicator at

the time of the rating decision and the statutory and

regulatory provisions extant at the time of that rating

decision were correctly applied in assigning a 10 percent

disability evaluation for an anxiety reaction.

2. The March 1955 rating decision assigning a 10 percent

disability evaluation for an anxiety reaction did not contain

factual or legal errors of such magnitude, individually or

cumulatively, that a different outcome would have to have

been reached in their absence.

3. The correct facts, as they were known at the time of the

March 1955 rating decision, were before the adjudicator at

the time of the rating decision, but the statutory and

regulatory provisions extant at the time of that rating

decision were not correctly applied by failing to adjudicate

the claim of entitlement to service connection for the

residuals of damage to cranial nerve VII.

4. The March 1955 rating decision failing to adjudicate the

claim of entitlement to service connection for the residuals

of nerve damage to cranial nerve VII contains errors of such

magnitude that a different outcome would have to have been

reached in their absence.

5. The correct facts, as they were known at the time of the

March 1955 rating decision, were before the adjudicator at

the time of the rating decision, but the statutory and

regulatory provisions extant at the time of that rating

decision were not correctly applied by failing to adjudicate

the claim of entitlement to service connection for loss of

tooth number 20.

6. The March 1955 rating decision failing to adjudicate the

claim of entitlement to service connection for the loss of

teeth contained errors of such magnitude that a different

outcome would have to have been reached in their absence.

CONCLUSIONS OF LAW

1. Clear and unmistakable error is not shown in the March

25, 1955 rating decision assigning a 10 percent disability

evaluation for an anxiety reaction. 38 C.F.R. § 3.105

(2004).

2. Clear and unmistakable error is shown in the March 25,

1955 rating decision failing to adjudicate the claim of

entitlement to service connection for the residuals of damage

to cranial nerve VII. 38 C.F.R. § 3.105 (2004).

3. Clear and unmistakable error is shown in the March 25,

1955 rating decision failing to adjudicate the claim of

entitlement to service connection for the loss of tooth

number 20. 38 C.F.R. § 3.105 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A decision of a duly constituted rating agency or other

agency of original jurisdiction shall be final and binding on

all field offices of VA as to conclusions based on the

evidence on file at the time VA issues written notification.

A final and binding agency decision shall not be subject to

revision on the same factual basis except by duly constituted

appellate authority or except as provided in 38 C.F.R.

Sections 3.105 and 3.2600. See 38 C.F.R. § 3.104(a).

38 C.F.R. Section 3.105(a) states that previous

determinations that are final and binding, including

decisions of service connection and degree of disability,

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.

The United States Court of Appeals for Veterans Claims

(Court) propounded a three-pronged test for determining when

there has been clear and unmistakable error committed in a

prior decision. This test is as follows: (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 clear and unmistakable error

must be based on the record and law that existed at the time

of the prior adjudication in question. See Russell v.

Principi, 3 Vet. App. 310, 313-14 (1992).

In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court refined

and elaborated on the test set forth in Russell. In Fugo,

the Court stated:

...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. . . . If a claimant-appellant

wishes to reasonably raise CUE 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 CUE 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 CUE claim is undoubtedly a collateral

attack, the presumption is even stronger.

Fugo v. Brown, 6 Vet. App. at 43-44 (emphases in original).

Thus, as a threshold matter, a claimant must plead clear and

unmistakable error with sufficient particularity. Only if

this threshold requirement is met does the Board have any

obligation to address the merits of the CUE claim. See

Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing

denial of CUE due to pleading deficiency and denial of CUE on

merits); Luallen v. Brown, 8 Vet. App. 92 (1995).

The Court also held in Fugo that allegations that previous

adjudications had improperly weighed and evaluated the

evidence can never rise to the stringent definition of clear

and unmistakable error. Fugo v. Brown, 6 Vet. App. at 44.

Similarly, broad brush allegations of "failure to follow the

regulations" or "failure to give due process," or any other

general, non-specific claim of error cannot constitute a

valid claim of clear and unmistakable error. Id.

Additionally, the Court held that VA's breach of its duty to

assist cannot form a basis for a claim of clear and

unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 382

(1994).

Anxiety Reaction

The veteran asserts that the March 1955 rating decision

assigning a 10 percent rating for his anxiety reaction was

clearly erroneous because his disability was described in the

medical evidence as moderately severe. He also contends that

because his condition has not really worsened over the years

and is now evaluated as 30 percent disabling, it must have

been erroneous for a 10 percent initial rating to have been

assigned. The veteran credibly testified before the Board

that he was anxious following his period of imprisonment and

upon his discharge from service with severe facial deformity.

At the time of the March 1955 rating decision, anxiety

reactions were evaluated under Diagnostic Code 9104 of the VA

Schedule of Ratings. This diagnostic code, however, directed

that the rating criteria of Diagnostic Code 9103 be used,

substituting psychological reactions of fear, anxiety, etc.,

for phobias, obsessions and compulsions. Thus, the following

is the rating criteria used in 1955 to evaluate the veteran's

diagnosed anxiety reaction:

Pronounced; with irresolution amounting to

aboulia, or severe anxiety reaction associated

with almost all daily activities; consistent

deterioration of the general health, persistent

and continuous; in symptom combinations that are

persistent, continuous, and productive of nearly

complete social and industrial

inadaptability..............................................................80

Severe; with characteristic indecision and severe

phobias, obsessions, compulsions or anxiety

reaction associated with several important or

common situations; productive or severe social

and industrial inadaptability..................................................50

Moderately severe; with persistent phobias,

obsessions or compulsions, fairly numerous and

materially circumscribing activity, producing

fairly constant moderate anxiety reaction or

perhaps occasional severe situation anxiety

episodes; productive of considerable social and

industrial inadaptability.....................30

Moderate...................................................................10

Mild..........................................................................0

The evidence of record at the time of the March 1955 rating

decision clearly shows that the veteran was treated for

anxiety during his period of active service following his

physical injuries and time spent as a prisoner of war. He

had a severe reaction to medication on one occasions and was

described as uncontrollable, but this type of episode was not

repeated once the medication was stopped. Following a May

1953 examination after the veteran was repatriated the

previous month, he was found to have moderately severe

anxiety. The veteran's DD Form 214 includes a notation that

he was discharged with an anxiety reaction causing marked

impairment.

Post-service hospital records dated in September 1954 include

the medical opinion that the veteran's anxiety reaction

caused marked impairment; hospital records dated from

September 1954 to November 1954 include the opinion that the

veteran had a moderately severe anxiety reaction; and, a

November 1954 clinical evaluation note includes the opinion

that the veteran's anxiety reaction caused moderate to severe

impairment. The November 1954 hospitalization records

reflect that the veteran was insecure with very strong

feelings of inferiority and inadequacy as well as marked

emotional constriction, with no evidence of psychosis or

organic brain damage.

Based on the evidence as outlined, the RO determined in March

1955 that the veteran's psychiatric condition began during

service and was moderate in severity. Thus, a 10 percent

evaluation was assigned using the criteria set out above.

Although there were medical opinions of record that the

veteran's anxiety reaction caused moderately severe and

marked impairment, the determination made by the RO that the

veteran had moderate impairment under the VA Schedule of

Ratings is not deemed to be clearly and unmistakably

erroneous. Specifically, VA is not bound in its rating

procedures by any specific use of wording by a medical

professional as it is unclear whether the medical personnel

examining the veteran based their opinions on interference

with social and industrial activities as VA is required to

do. Even though the Board certainly appreciates the

veteran's argument that a person could interpret the medical

record to show that he had a moderately severe psychiatric

condition so as to warrant the assignment of a 30 percent

rating in 1955, allegations that previous adjudicators

improperly weighed and evaluated evidence can never rise to

the stringent definition of clear and unmistakable error.

See Fugo v. Brown, 6 Vet. App. at 44.

Consequently, the Board finds that the March 1955 rating

decision does not contain clear and unmistakable error with

respect to the assignment of a 10 percent rating for an

anxiety reaction because the correct facts, as they were

known at the time of the March 1955 rating decision, were

before the adjudicator at the time of that decision and the

statutory and regulatory provisions extant at that time were

correctly applied. Additionally, the March 1955 rating

decision does not contain factual or legal errors of such

magnitude, individually or cumulatively, that a different

outcome would have to have been reached in their absence.

The veteran's testimony in 2004 with respect to his belief

that his psychiatric disability has not increased in severity

since 1955 cannot be considered when determining whether

clear and unmistakable error has been committed because the

Board may only look to the evidence that was before the RO at

the time of the rating in question. Therefore, the veteran's

claim that clear and unmistakable error was committed by the

RO in its March 1955 assignment of a 10 percent rating for an

anxiety reaction is denied.

Nerve Damage and Loss of Teeth

The veteran asserts that the RO clearly erred in March 1955

by not granting entitlement to service connection for

residuals of damaged cranial nerve VII and the loss of teeth.

He contends that all disabilities stem from his in-service

combat wounds and the imperfect care he received while a

prisoner of war.

Service connection for VA compensation purposes will be

granted for a disability resulting from disease or personal

injury incurred in the line of duty or for aggravation of a

preexisting injury in the active military, naval or air

service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

When a veteran seeks service connection for a disability,

due consideration shall be given to the supporting evidence

in light of the places, types, and circumstances of service,

as evidenced by service records, the official history of

each organization in which the veteran served, the veteran's

military records, and all pertinent medical and lay

evidence. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a).

The mere fact of an in-service injury is not enough; there

must be evidence of a chronic disability resulting from that

injury. If there is no evidence of a chronic condition

during service, or an applicable presumptive period, then a

showing of continuity of symptomatology after service is

required to support the claim. See 38 C.F.R. § 3.303(B).

Evidence of a chronic condition must be medical, unless it

relates to a condition to which lay observation is

competent. See Savage v. Gober, 10 Vet. App. 488, 495-498

(1997).

The evidence clearly shows that the veteran was severely

injured by a shrapnel wound to the face just prior to

becoming a prisoner of war. Upon his repatriation in 1953,

he underwent a physical examination and was determined to be

missing one tooth (number 20) on the left lower side of his

jaw that was present when he was examined upon entry into

service; all other missing teeth were also noted as missing

in November 1951.

Service treatment records also include the finding of damage

to the facial nerve and the trigeminal nerve. The majority

of the treatment records include reference to either the

trigeminal nerve or cranial nerve number V, which is the

trigeminal nerve, but several records mention facial nerve

damage without specifying what cranial nerve was being

discussed. The facial nerve is known as cranial nerve number

VII.

Based on the evidence outlined, the RO granted entitlement to

service connection for various residuals of the shrapnel

wound to the face, but failed to address the damage to

cranial nerve number VII and the loss of teeth as neither

disability was mentioned in its March 1955 rating decision.

The Board finds, however, that the March 1955 rating decision

with respect to these two issues contains clear and

unmistakable error because the correct facts, as they were

known at the time of the March 1955 rating decision, were

before the adjudicator at the time of the decision but the

statutory and regulatory provisions extant at that time were

not correctly applied. Specifically, giving deference to the

veteran as a prisoner or war, the RO should have granted

service connection for all disabilities shown to be a result

of the in-service injury and/or his period of imprisonment.

Because the record evidence before the RO in March 1955

included findings of damage to the facial nerve and of one

more missing tooth than prior to the injury, evidence of the

existence of disabilities which obviously stem from either

the in-service severe facial injury and/or the lack of proper

treatment during approximately thirteen months of

imprisonment, the RO committed clear and unmistakable error

by not specifically addressing and granting the benefits

sought. Consequently, the Board finds that entitlement to

service connection should have been granted for residuals of

damage to cranial nerve number VII and for missing tooth

number 20 in the March 25, 1955, rating decision.

Veterans Claims Assistance Act of 2000

The Board finds that the provisions of the Veterans Claims

Assistance Act of 2000 (VCAA) (codified as amended at

38 U.S.C.A. § 5100 et seq. (West 2002)) are not applicable to

claims of clear and unmistakable error (CUE) in an RO

determination. See Parker v. Principi, 15 Vet. App. 407, 412

(2002). CUE claims are not conventional appeals, but

requests for revisions of previous decisions. See Disabled

American Veterans v. Gober, 234 F.3d 682, 694 (Fed. Cir.

2000) citing Haines v. West, 154 F.3d 1298, 1300 (Fed. Cir.

1998). Thus, the moving party bears the burden of presenting

allegations of error which existed at the time of the

decision alleged to be the product of CUE. See Livesay v.

Principi, 15 Vet. App. 165, 178-179 (2001). As a

consequence, notifying an appellant of evidence necessary to

substantiate a claim and assisting him in obtaining such

evidence are obviously not requirements for CUE claims.

ORDER

Clear and unmistakable error having not been committed in the

March 25, 1955 rating decision assigning a 10 percent

disability evaluation for an anxiety disorder, the veteran's

appeal is denied.

Clear and unmistakable error having been committed in the

March 25, 1955 rating decision in failing to adjudicate the

claim of entitlement to service connection for residuals of

damage to cranial nerve VII, the veteran's appeal is granted

with respect to cranial nerve VII, subject to the laws and

regulations governing the award of monetary benefits.

Clear and unmistakable error having been committed in the

March 25, 1955 rating decision in failing to adjudicate the

claim of entitlement to service connection for loss of teeth,

the veteran's appeal is granted with respect to tooth number

20, subject to the laws and regulations governing the award

of monetary benefits.

____________________________________________

CONSTANCE B. TOBIAS

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Edited January 14, 2006 by carlie