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ptsd 2005 - Cue Eed Back To 1973 -
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carlie
ognizeCitation Nr: 0500624
Decision Date: 01/10/05 Archive Date: 01/19/05
DOCKET NO. 97-13 493A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office
in San Juan, the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an effective date earlier than April 4, 1994,
for the assignment of a 100 percent rating for service-
connected schizophrenia, including based on clear and
unmistakable error (CUE).
REPRESENTATION
Appellant represented by: Eric C. Conn, Attorney
ATTORNEY FOR THE BOARD
Panayotis Lambrakopoulos, Counsel
INTRODUCTION
The veteran served on active duty from November 1967 to
August 1969.
This appeal arises before the Board of Veterans' Appeals
(Board) from a February 1997 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico, that denied a
claim for an effective date earlier than April 4, 1994, for a
total schedular evaluation for the veteran's service-
connected schizophrenic disorder. In March 1999, the Board
remanded the claim to the RO for readjudication, including
consideration of the veteran's arguments of CUE. The RO
issued a rating decision in September 1999 that addressed the
veteran's CUE arguments.
In December 1999, the Board denied the claim for an effective
date earlier than April 4, 1994, for the assignment of a
total schedular evaluation for service-connected
schizophrenia, including on the basis of CUE. In January
2002, the United States Court of Appeals for Veterans Claims
(Court) granted a December 2001 joint motion for remand filed
by the VA Secretary and the veteran. In doing so, the Court
vacated the Board's December 1999 decision and remanded the
matter for readjudication.
In October 2002, the Board issued a development memorandum
that sought additional development regarding the veteran's
claim. However, due to the invalidation of certain
regulatory authority pursuant to which the Board had
generally been issuing such development memoranda, the Board
issued a superseding remand in September 2003, directing the
RO to undertake the requested development. See Disabled
American Veterans v. Sec'y of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003) (invalidating 38 C.F.R. § 19.9(a)(2)
(2002)).
FINDINGS OF FACT
1. All requisite notices and assistance owed to the veteran
have been provided, and all evidence necessary for an
equitable disposition of the claim has been obtained.
2. The veteran's service-connected schizophrenia was
manifested by complete impairment, with bizarre behavior,
active psychotic symptoms, violence and aggressiveness, and
other impairments, as of a VA examination on November 7,
1973.
3. The RO's December 1973 RO rating decision was clearly and
unmistakably erroneous in that it did not properly apply the
appropriate rating criteria in effect at that time to the
evidence of record at that time; but for that error, the
outcome would have been manifestly changed.
CONCLUSION OF LAW
The criteria for an effective date of November 7, 1973, for a
100 percent rating for service-connected schizophrenia are
met. 38 C.F.R. § 3.105 (2004); 38 C.F.R. § 4.132, Diagnostic
Code 9204 (1970).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual background
The veteran served on active duty from September 1948 to June
1957 and from August 1957 to May 1969.
In September 1969, one month after separation from service,
the veteran filed a claim for service connection for various
conditions, including a combat injury to his leg,
nervousness, and headaches.
On VA psychiatric evaluation in October 1969, he was
cooperative and attentive. His affect was bland, but
appropriate. His mood was anxious and slightly depressed.
He was oriented in three spheres. Recent and remote memory
was good. His stream of thought was clear, coherent, and
relevant. No thought disorders were detected. His judgment
was good. Intelligence was average. The ability to think
abstractly was good. There were no suicidal thoughts,
hallucinations, paranoid ideations, or ideas of reference.
The diagnosis was anxiety reaction, which was mild to
moderate.
The veteran was hospitalized at the Hato Rey Psychiatric
Hospital from March to June 1970 because of aggressive-
destructive behavior, disorders of perception, and alcohol
intake. He had first appeared at a VA facility, which then
referred him to a "contract hospital," according to a March
1970 VA progress note. His production was disorganized. He
admitted to auditory hallucinations and hyperkinetic
seizures. His affect was flat. He was disoriented as to
time and place. His memory, intellectual capacities,
judgment, and insight were handicapped. After the initial
acute symptoms started to subside, he was transferred to an
open ward, where he showed good adjustment. On medication
and therapeutic interviews, he was able to sustain his
symptomatic improvement, and later when weekly passes were
allowed. The diagnosis was schizophrenic reaction,
undifferentiated type, chronic, as noted on the Hato Rey
Psychiatric Hospital's hospital summary (VA Form 10-1000).
According to a March 1970 VA medical certificate, the veteran
was hospitalized at a VA facility because he was acutely
psychotic, with a diagnosis of chronic, severe schizophrenic
reaction.
In July 1970, in part, the RO awarded service connection and
a 10 percent rating for anxiety reaction, effective August
30, 1969, the date after separation from service.
From September to November 1970, the veteran was hospitalized
at a VA facility because of anxiousness, nervousness, and
fear, with nightmares and insomnia. He was admitted for
treatment of severe, chronic schizophrenic reaction,
undifferentiated type. He had been unemployed since service.
It was also noted that he had recently been psychiatrically
hospitalized (three months earlier) at the "Julia Clinic"
and that he was receiving prescriptions. During
hospitalization, no hallucinations were noted, and his
delusional ideation became better. He became more sociable
and active, with improvement in his condition, including his
socialization. It was noted that he had been home on passes
and that he had handled that well. He was discharged, with
referral to the mental health clinic for continued outpatient
treatment. The hospital discharge summary rendered a
diagnosis of schizophrenic reaction, undifferentiated type,
chronic, severe. His improvement in various aspects and
symptoms was noted, including in terms of delusional
ideation, hallucinations, sleep, and nightmares.
The veteran filed a claim for an increased rating in March
1971. In March 1971, the RO requested a medical opinion to
reconcile two psychiatric diagnoses.
In an April 1971 "expert opinion," Dr. Lombardi, M. D., a
VA doctor, opined that the veteran's anxiety reaction had
matured into schizophrenic reaction.
In a May 1971 rating decision, the RO recharacterized the
veteran's service-connected psychiatric disability as
"schizophrenia, undifferentiated type." The RO awarded a
temporary total (100 percent) rating due to hospitalization
effective from September 12, 1970; and a 50 percent rating,
effective from December 1, 1970.
On VA psychiatric examination in November 1973, the veteran's
claims folder was not reviewed. It was noted that the
veteran's last hospitalization had been in 1970. The
examiner incorrectly noted that the last hospitalization had
been from March to June 1970, when it had in fact been from
September to November 1970. The veteran was now living with
his spouse and child, and he had been unemployed for four
years. He stayed away from home a great deal and drank
alcoholic beverages frequently. He came to the interview
alone; his personal hygiene was good. He appeared
cooperative but did not make eye contact. He moved
continuously, and his fingers were trembling. His behavior
was described as "bizarre." Thought production was
realistic; but flow of ideas was increased and mildly
retarded, with looseness of associations. His speech was
coherent, relevant, and perseverant. Content of thought was
filled with aggressive, destructive and persecutory ideas.
He revealed ideas of reference. He was oriented in all three
spheres; memory was rather good. He made some abstractions
from proverbs. Mental grasp for current events was rather
good. Mental concentration was fairly poor. Mathematics
calculations were rather good. His fund of information was
almost adequate, judgment was impaired. The diagnosis was
schizophrenic reaction, undifferentiated type, chronic. The
condition was moderately severe to severe, but he was able to
manage his VA benefits.
In December 1973, the RO continued the 50 percent rating for
schizophrenia.
On VA psychiatric examination in December 1975, the veteran's
medical records were not reviewed. It was noted that the
veteran was unemployed, lived with his family in the home of
his widowed mother, and was treated by a fee-basis
psychiatrist. He was tense, restless with a nonsensical
attitude, distracted, and uninterested in the examination.
However, contact with reality was correct. His responses
were not always pertinent, but he supplied very pertinent
information about his mental content. He described frequent
quarrels with friends and his brothers. Sleep was very
restless, even with medication. He heard noises and
footsteps inside the house. The veteran's spouse described
him as arrogant, cruel and abusive. He had occasional
episodes of excitement, with aggressive, violent, and
destructive tendencies and followed by crying spells and
verbalized feelings of unworthiness and suicidal ideas.
Insight and judgment capacity were fair. The diagnosis was
moderately severe to severe schizophrenic reaction,
undifferentiated type; he was competent to handle VA benefit
payments.
In January 1976, the RO continued the 50 percent rating for
schizophrenia.
The veteran filed a claim for a TDIU rating in May 1976. The
veteran referred to monthly treatment by a doctor and by "VA
Hospital Staff Doctors."
Several prospective employers wrote in letters received in
May through July 1976 that the veteran had been denied
employment due to receipt of Social Security Administration
(SSA) disability benefits for a nervous disorder.
The RO denied the claim for a TDIU rating in June 1976.
On VA psychiatric examination in November 1977, it was noted
that the veteran had been admitted t the Hato Rey Psychiatric
Hospital in March 1970 and had been hospitalized for more
than two months because of schizophrenia reaction,
undifferentiated type, chronic. He was divorced and lived
with his mother. He had been unable to go to school due to
lack of concentration and nervousness. He had not been able
to be gainfully employed since his discharge. It was noted
that he had been receiving monthly treatment from a fee-basis
psychiatrist (Dr. Hurtado de Mendoza). Medications included
Serentil, Vistaril, and Elavil. A friend accompanied the
veteran to the interview. He was well dressed and well
groomed. He appeared very tense, anxious, and suspicious of
his surroundings. He was in good contact with reality and
alert; his speech was coherent and logical. There was no
thought disorder in process. Thought content was
referential, with paranoid ideations. He related poorly to
others and did not allow anyone close to him. He described
auditory hallucinations and visions. Affect was dull and
inappropriate; mood was depressed. He had had self-
destructive ideations, but he did not seem to be suicidal at
examination. He was oriented, but memory was poor for recent
events. Concentration was very poor. Sleep was poor, with
nightmares. He had good sexual relations, but his
associations were only physical without affection. Judgment
was good, but he had no insight. The diagnosis was chronic
schizophrenia, undifferentiated type. The level of
disability was severe, but he was competent to handle funds.
In April 1978, the RO continued the 50 percent rating for
schizophrenia.
The VA from September 1982 to March 1983 hospitalized the
veteran. Reports from October 1982, December 1982, and
February 1983 remarked that he was completely unable to work
and to handle his funds properly; the overall prognosis was
severe. The March 1983 discharge summary indicated that the
veteran displayed very poor communication, poor judgment,
poor interpersonal relationships, and inappropriate childish
affect. However, as acute symptomatology was being
controlled, he was allowed to go home on weekend visits
frequently and was able to adjust to the home environment
during these visits. However, on the last visit offered, he
failed to return as expected, and he was discharged as absent
without official leave.
On VA examination in June 1984, the veteran stated that he
was always nervous, that he did not like to be around people,
and that he was not able to work. He admitted to
occasionally drinking, but denied substance abuse. On mental
status examination, he was alert, verborrheic, cooperative,
and related satisfactorily to the examiner. He had flight of
ideas. Sensorium was clear. Affect was moderately exalted.
He was disoriented in time. Memory for remote and recent
events was fair. Concentration and immediate memory were
poor. Thought content was characterized by some ideas of
reference, although there were no overt psychotic processes
at present. He had scopophobia and angiogenic ideation.
Judgment was moderately impaired. Insight was fair. The
diagnosis was undifferentiated schizophrenia, in partial
remission. On Axis V, he was described as being Level 4 to
5. The veteran was found competent.
In a March 1985 rating decision, the RO awarded a temporary
total rating for the schizophrenia effective from September
1982 to March 1983, based on that VA hospitalization; it then
assigned a 50 percent rating as of April 1, 1983.
On VA examination in July 1986, the veteran came to the
office accompanied by his spouse and was examined with and
without her presence. His claims folder was not available,
and the examiner did not have any medical records after 1977
available for review. The examiner noted that the veteran
had apparently not been able to work or to study since his
service days. The veteran admitted to restlessness and
having used marijuana and cocaine. He described problems
with neighbors, requiring occasional police intervention. He
indicated that a fee-basis psychiatrist was treating him and
that he occasionally used medication. The examiner commented
that the veteran had a rather blunted affect. He looked
distant and rather suspicious. He seemed to have no insight
or motivation. His conversation was coherent and relevant,
but the content gave quite a pessimistic attitude and was
quite paranoid. He was not actively hallucinating. There
was no looseness of association. He was oriented in all
three spheres. Memories were poor as was his concentration.
Retention and recall were poor, as was judgment. He also was
described as "quite dependent." The diagnosis was
schizophrenia, chronic, undifferentiated type (active). The
highest level of adaptive functioning in the past year was
"very poor." However, the veteran was competent to handle
VA funds.
In November 1986, the RO continued the 50 percent rating for
schizophrenia.
On VA examination in July 1988, the veteran and his spouse
were interviewed separately. The claims folder was not
available; only a thin outpatient folder was available for
review. The veteran was being followed as an outpatient by
his fee-basis psychiatrist. He was taking Trilafon, Xanax,
and Ponstel. The impression was a rather chronically
depressed person. He indicated that he spent his time
wandering outside and drinking a lot. His wife stated that
sometimes the veteran did not come home at night. Sometimes
he got in fights, apparently under the effect of alcohol. On
mental status examination, the examiner noted poor direct
eye-to-eye contact. He seemed depressed, withdrawn and
despondent with little interest in his surroundings. His
answers were relevant, coherent, but not logical. The
thought content dealt with chronic depressive feelings,
feelings of emptiness, frustration. There were non-organized
persecutory and referential delusions. He complained vaguely
about auditory hallucinations. He was prone to become
argumentative, aggressive, and destructive; this increased
under the effects of alcohol. The affect was rather
inappropriate; the mood was depressed. He was oriented in
all three spheres. Memory was fairly preserved, with lacunae
for specifics. Intellectual functioning was average.
Judgment was poor. Insight was very poor. Diagnoses were
schizophrenia, undifferentiated type, with chronic depressive
features; and substance use disorder, alcohol dependence,
continuous. He was mentally competent to handle funds.
In August 1988, the RO continued the 50 percent rating for
schizophrenia.
On April 4, 1994, the veteran submitted a claim for a TDIU
rating due to his service-connected schizophrenia. He
reported receiving SSA benefits ever since separation from
active service.
In connection with the claim for a TDIU rating, the veteran
also submitted a March 1994 psychiatric evaluation from Dr.
Raul Correa Grau, M.D. The veteran's overall appearance
indicated depression and slight confusion, with hostility and
suspicion. Thought content indicated good contact with
reality. He sometimes felt like he would explode and would
isolate himself from others. He referred to war memories and
nightmares of Vietnam. The examiner noted that the veteran
had many symptoms of PTSD, but also a history of
hallucinations. The examiner noted that the veteran's
ability to work had been very poor and that he had, in fact,
never worked. The diagnoses were PTSD and probable chronic
schizophrenia with partial symptoms. His functional score on
the Global Assessment of Functioning (GAF) scale was
approximately in the 40's.
In June 1995, the RO requested SSA records relating to the
veteran. These records included a September 1970 psychiatric
evaluation indicating that the veteran was not mentally
competent to work or to handle his own funds.
In July 1995, records were received from the veteran's fee-
basis psychiatrist, Alfredo Hurtado de Mendoza, M.D., dated
from August 1989 to October 1994. In August 1989, the
veteran complained of insomnia, nightmares and headaches; he
spent most of his time alone. In January 1991, he described
episodes of anger in his interpersonal relationships; he
remained isolated. In February 1992, he reported hearing
voices. In March 1993, it was noted that his impoverishment
of daily life persisted with his ill-humored behavior with
people. In October 1994, the report was similar to the past;
in all reports the examiner noted that the degree of the
veteran's impairment was severe and that the prognosis was
poor.
In August 1995, the VA received a copy of the veteran's SSA
disability award decision. The SSA had found the veteran
disabled since August 1969 due to a diagnosis of
schizophrenia, undifferentiated type with paranoid features.
Also submitted in August 1995 was a copy of an August 1970
psychiatric evaluation from a non-VA psychiatrist, J. A.
Mojica Sandoz, M.D. The veteran's daily activities consisted
of walking aimlessly. He tolerated the examination poorly,
and he showed a poor capacity for establishing adequate
interpersonal relationships. He admitted to auditory
hallucinations. His capacity for remote and intermediate
memory was spotty; his recent memory was adequate. He was
partially disoriented in time and place. He had a poor
capacity for judgment and no insight of his mental condition.
The diagnosis was schizophrenia, undifferentiated type, with
paranoid features, manifested by anxiety, tension, depressed
and hostile affect and content of thought, ideas of
insufficiency, marked insecurity, suicidal and homicidal
ruminations, ideas of reference, tendency toward isolation,
withdrawal, auditory hallucinations, poor capacity for
memory, orientation, and judgment, and no insight. The
examiner concluded that the veteran was currently psychotic;
although he could manage himself in his basic needs (eating,
bathing, dressing), his capacity for establishing adequate
and lasting interpersonal relations was markedly impaired.
The veteran had a marked tendency toward dependency, and the
prognosis was guarded. The psychiatrist concluded that
"[t]here is no doubt that [the veteran] is not mentally
competent to engage in any kind of competitive, self-
sustaining type of activity and I would suggest that a
mature, responsible person be named to handle [his] funds."
In August 1995, an October 1971 private psychiatric
evaluation report from Jose M. Reyes, M.D., was also
received. It was noted that the veteran had friends and got
along well with people but that he did not socialize. He
could take care of his personal needs, needed little
supervision, and could handle funds. He was not considered
psychotic at time of examination. He did not show much
personality deterioration at the present time. The
impression was chronic, undifferentiated schizophrenia, in
fair remission with a guarded prognosis. On an accompanying
supplemental questionnaire, it was noted that the veteran's
ability to relate to other people was moderately impaired;
that his daily activities such as attending meetings, working
around the house, and socializing, were restricted to a
moderately severe degree; that the degree of deterioration in
his personal habits was mild; and that the constriction of
his interest was severe. All of the following matters were
described as poor: ability to comprehend and follow
instructions; to perform work requiring frequent contact with
others; to perform work where contact with others will be
minimal; and to perform simple, complex, repetitive, and
varied tasks. It was felt that there would be only limited
improvement in the veteran's condition over a period of
several years.
Report of VA examination conducted in July 1995, noted that
the veteran was accompanied to the interview by his spouse.
He continued his fee-basis program of treatment. He was
currently taking Trilafon and Valium. Both he and his spouse
acknowledged he continued to drink heavily. The veteran spent
most of his time away from home and getting involved in
arguments with other people. The examiners found his
responses to questions to be, in general, relevant and
coherent. The content dealt with no interest in getting
involved in anything. He was distrustful of others, but not
overtly delusional or actively hallucinating. The affect was
inappropriate; the mood was hyperactive, anxious and
restless. He was oriented and memory was grossly preserved.
Judgment was fair and insight was very poor. He was
considered mentally competent to handle VA funds. The
diagnoses on axis I were: 1) schizophrenic disorder, residual
type with depressive features; and 2) substance use disorder,
alcohol dependence, active. He was assigned a GAF score of
60.
In a rating action dated in August 1995, the RO granted a 100
percent evaluation for schizophrenic disorder, residual type
with depressive features, effective from April 4, 1994.
Thereafter, the veteran requested an earlier effective date
for the award of the 100 percent evaluation for
schizophrenia. He also claimed CUE in prior rating decisions
that assigned only a 50 percent rating to his disability and
in the rating decision that only awarded a temporary total
rating from September 1982 to March 1983.
In a rating action dated in April 1996, the RO found CUE in
the RO's March 1985 rating decision that had awarded a
temporary 100 percent rating from September 7, 1982, to March
22, 1983, based on a period of psychiatric hospitalization;
the RO awarded a temporary 100 percent rating for an
additional six months of convalescence due to the
hospitalization. Thus, the March 1985 rating decision was
amended to reflect a 50 percent rating from December 1, 1970;
a 100 percent rating from September 7, 1982; a 50 percent
rating from October 1, 1983; and a current rating of 100
percent effective from April 4, 1994.
As noted above, in December 1999, the Board denied a claim
for an effective date earlier than April 4, 1994, for the
assignment of a total scheduler evaluation for service-
connected schizophrenia, including on the basis of CUE.
In January 2002, the Court vacated and remanded the Board's
December 1999 decision. In doing so, the Court granted a
joint motion filed by the VA's and the veteran's
representatives. That joint motion set forth several bases
for seeking a remand. Primarily, the parties sought a
discussion of (1) whether the VA failed in its duty to assist
the veteran by not obtaining various items of evidence in
connection with prior RO rating decisions and (2) whether
such failure to assist either resulted in CUE in any of those
prior RO rating decisions or otherwise rendered non-final any
of those prior RO rating decisions.
In February 2003, the VA received copies of the veteran's
service medical records. His August 1969 separation medical
history and examination reports noted no psychiatric
symptoms. However, the medical history report noted that the
veteran had been a patient in a mental hospital or
sanitarium, described as the St. Albans Hospital 11425.
In May 2003, the RO received copies of VA treatment records
dating as far back as September 1970.
A June 2003 response from the National Personnel Records
Center (NPRC) indicated that a search for inpatient clinical
records from a Naval hospital in New York for the month of
October 1968 had been unsuccessful.
According to a March 2004 note from a private psychiatrist,
Alberto Hurtado de Mendoza, M.D., the veteran had been
receiving ambulatory psychiatric treatment on a monthly basis
since August 1972 and that he was unable to engage in any
work.
In May 2004, the RO received documents from the SSA
pertaining to the veteran's SSA disability award. Those
documents included the report of a summary of the veteran's
non-VA hospitalization from March to June 1970; a May 1970
contact with the veteran's mother, indicating that the
veteran's condition had worsened with VA treatment and
referring to a March 1970 hospitalization due to a violent
outburst; Dr. Mojica Sandoz's September 1970 psychiatric
evaluation; Dr. Reyes' October 1971 psychiatric evaluation; a
November 1973 VA psychiatric evaluation; and a November 1977
VA psychiatric evaluation.
II. Analysis
Before turning to the more substantive aspects of the
veteran's claim, the Board must accurately identify the
proper issue that is in appeal.
The appeal has been variously characterized in previous RO
and Board decisions, as well as in pleadings filed by the
parties before the Court, as either (1) a claim for an
effective date earlier than April 4, 1994, for the assignment
of a total schedular evaluation for schizophrenia, to include
based on CUE; or (2) an effective date earlier than April 4,
1994, for the assignment of a TDIU rating, based on CUE. The
veteran has been pursuing the same essential claim ever since
the RO's August 1995 rating decision (which at that time was
described as a claim for an increased rating) that awarded a
100 percent rating for schizophrenia effective April 4, 1994.
The effective date was based on the date of receipt of a
claim that the veteran had filed alleging that he was
unemployable due to his service-connected schizophrenia and
seeking a TDIU rating.
The record reflects that the veteran was awarded a schedular
100 percent rating for his service-connected schizophrenia
under 38 C.F.R. § 4.132, Diagnostic Code 9205 (1994). It
does not appear that the RO relied upon the provisions of
38 C.F.R. § 4.16(a) (1994), which govern determinations of
TDIU ratings. The RO's August 1995 decision appears to have
outright awarded a schedular 100 percent rating for the
veteran's service-connected schizophrenia. Cf. 38 C.F.R.
§ 4.16© (1994) (where the only compensable service-
connected disability is a mental disorder rated 70 percent
and such mental disorder precludes veteran from securing or
following substantially gainful occupation, the mental
disorder shall be assigned a 100 percent schedular rating
under the applicable diagnostic code). There does not even
appear to have been a need to invoke the provisions of
38 C.F.R. § 4.16©
The Board reasonable concludes that the first issue has
always involved a claim for an earlier effective date for the
assignment of this schedular 100 percent rating for the
veteran's schizophrenia.
A. Veterans Claims Assistance Act of 2000
Initially, the Board notes that the Veterans Claims
Assistance Act of 2000 (VCAA) was enacted on November 9,
2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107
(West 2002). The VA implemented the VCAA in 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and its
implementing regulations enhanced the notification and
assistance duties of the VA to claimants.
In the joint motion that served as the basis for the Court's
January 2002 order that vacated and remanded the Board's
December 1999 decision, the parties indicated that the Board
should apply the provisions of the VCAA, as appropriate, to
the issue of an earlier effective date based on the veteran's
1994 claim.
The duties to notify and assist imposed by the VCAA are not
applicable where CUE is claimed, either in Board decisions
(see Livesay v. Principi, 15 Vet. App. 165 (2001)), or in RO
decisions (see Parker v. Principi, 15 Vet. App. 407 (2002)).
CUE claims are not conventional appeals; rather, they are
requests for revision of previous decisions. A claim based
on CUE is fundamentally different from any other kind of
action in the VA adjudicative process. A litigant alleging
CUE is not pursuing a claim for benefits, but rather is
collaterally attacking a final decision. Livesay, 15 Vet.
App. at 178-179. Moreover, a litigant has the burden of
establishing such error on the basis of the evidence then of
record. Ibid.
In any event, the Board finds that the veteran has been
notified of the laws and regulations governing CUE claims and
reasons for the denial of the claim and that all relevant
evidence has been associated with the record. In particular,
the RO sent the veteran a supplemental statement of the case
in September 1999 that addressed the CUE arguments. Thus,
any pre-VCAA duties to notify and assist have been met with
regard to the aspects of the veteran's claim that are
predicated upon CUE. Hence, the claim for an effective date
earlier than April 4, 1994, for the assignment of a total
schedular evaluation for schizophrenia based on CUE is ready
for consideration on the merits.
However, the veteran's claim for an effective date earlier
than April 4, 1994, for the assignment of a total schedular
evaluation for schizophrenia is also predicated on grounds
other than CUE. To that extent alone, the provisions of the
VCAA do apply, and the Board must first address whether the
VA has complied with its duties to notify and assist the
veteran regarding that aspect of his overall claim for an
earlier effective date for a 100 percent rating for
schizophrenia.
Recently, in Pelegrini v. Principi, 18 Vet. App. 112 (2004),
the Court held that 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(B)(1) (2004) apply to cases pending before VA on
November 9, 2000, even if the initial agency of original
jurisdiction decision was issued before that date; and (2)
that a claimant must be given notice in accordance with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(B)(1) before an
initial unfavorable decision is issued. Section 3(a) of the
VCAA (also 38 U.S.C.A. § 5103(a)) and 38 C.F.R. § 3.159(B)(1)
require that, upon receipt of a complete or substantially
complete application, the VA must notify the claimant and any
representative of any information and any medical or lay
evidence not previously provided to the VA that is necessary
to substantiate the claim; this notice requires the VA to
indicate which portion of that information and evidence is to
be provided by the claimant and which portion the VA will
attempt to obtain on the claimant's behalf.
In Pelegrini, the Court appears to have held, in part, that a
VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(B) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." The Court stated that this
new "fourth element" of the notice requirement comes from
the language of 38 C.F.R. § 3.159((1).
In this case, the initial unfavorable decision was made
before the date of the VCAA's enactment on November 9, 2000.
However, even under Pelegrini, the notices regarding the
veteran's claims informed him of the bases for the relevant
decisions, what types of evidence would be needed, and how
the evidence would be secured. The Board also concludes that
any defect that may exist with regard to the timing of the
VCAA notice to the veteran was harmless because of the
extensive, thorough, and informative notices provided to him
throughout the adjudication of this claim. Moreover, as the
Court noted in Pelegrini, there is no error in the RO's not
providing notice of the VCAA's requirements prior to the
initial adjudication decision where such notice was not
mandated at the time of the initial adjudication decision.
Pelegrini, 18 Vet. App. at 120.
The VA has informed the veteran of all applicable laws and
regulations, what types of evidence are needed to support his
claim, who is responsible for securing items, and the need
for any other evidence that the veteran may have in his
possession. The VA's thorough notices of all matters
required by the VCAA and its regulatory progeny throughout
this adjudication have cured any defects involving notice of
the provisions of the VCAA or the timing of such notice. The
RO sent the veteran a statement of the case in May 1997; and
supplemental statements of the case in November 1998,
September 1999, May 2004, and June 2004. Taken together, all
of these documents discussed the evidence considered and the
pertinent laws and regulations, including provisions of the
VCAA and the reasons for the RO's decision. There can be no
harm to the veteran, as the VA has made all efforts to notify
and to assist the veteran with regard to the evidence
obtained, the evidence needed, the responsibilities of the
parties in obtaining the evidence, and the more general
notice of the need for any evidence in the veteran's
possession. Thus, the VA has satisfied its "duty to
notify" the veteran.
Through discussions in correspondence, the rating decisions,
the statements of the case, and the supplemental statements
of the case, the VA has informed the veteran of the evidence
necessary to substantiate his claim. He has been informed of
his and the VA's respective responsibilities for providing
evidence. Pertinent identified medical records have been
obtained. The notice and duty to assist provisions of the
law are satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §
3.159.
Moreover, the Court has concluded that the VCAA is not
applicable where the appellant was fully notified and aware
of the type of evidence required to substantiate his claims
and that no additional assistance would aid in further
developing his claims. Dela Cruz v. Principi, 15 Vet. App.
143, 149 (2001). When, as here, there is extensive factual
development in a case, and there is no reasonable possibility
that any further assistance would aid the claimant in
substantiating a claim, the VCAA does not require further
assistance. Wensch v. Principi, 15 Vet App 362 (2001); Dela
Cruz; see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not
required to provide assistance "if no reasonable possibility
exists that such assistance would aid in substantiating the
claim"). In this case, the issue turns on the application
of the law to facts already in existence. As such, further
assistance would not be productive.
The VA has undertaken all reasonable efforts to assist the
veteran in securing all evidence and has satisfied its duty
to assist under the VCAA over many years. The Board finds
that both the notice and duty to assist provisions of the law
are satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §
3.159. The Board will now address the merits of the
veteran's claims for service connection.
B. Merits
The Board will address each of the possible "theories" for
an earlier effective date.
The effective date of an award of an increased rating is the
earliest date as of which it is ascertainable that an
increase in disability has occurred if the application for an
increased rating is received within one year from such date.
38 U.S.C.A. § 5110((2) (West 2002); 38 C.F.R. § 3.400(o)
(2004); Harper v. Brown, 10 Vet. App. 125, 126 (1997).
At a minimum, the Board finds that the veteran is entitled to
an earlier effective date for the award of a 100 percent
rating for schizophrenia as of March 8, 1994. In connection
with his April 1994 claim for a TDIU rating, the veteran
submitted a March 8, 1994, psychiatric evaluation from Dr.
Grau, who described the veteran's poor work history and
several lengthy psychiatric hospitalizations.
In this case, the March 8, 1994, psychiatric evaluation
indicated that the veteran's disability was initially related
to memories of Vietnam and a diagnosis of post-traumatic
stress disorder (PTSD), but he also indicated that there was
probable chronic schizophrenia with partial symptoms. The
March 1994 psychiatric evaluation should be considered in
light of the subsequent examinations that showed that the
veteran was totally disabled due to his service-connected
schizophrenia. Thus, it was factually ascertainable that the
veteran was totally disabled due to schizophrenia since at
least March 8, 1994, which was within one year of the date of
receipt of his April 1994 claim for a TDIU rating.
However, the Board's inquiry does not cease at this effective
date. The veteran maintains that he should have been rated
100 percent disabled due to schizophrenia since separation
from service, and he contends that earlier RO rating
decisions that failed to assign a 100 percent rating for his
schizophrenia were clearly and unmistakably erroneous. The
Board thus now turns to the veteran's allegations of CUE in
earlier RO decisions.
Those RO rating decisions are the following:
(1) In July 1970, in part, the RO awarded service
connection and a 10 percent rating for anxiety
reaction, effective August 30, 1969, the date after
separation from service.
(2) In May 1971, the RO recharacterized the veteran's
service-connected psychiatric disability as
"schizophrenia, undifferentiated type." The RO
awarded a temporary total (100 percent) rating due to
hospitalization effective from September 12, 1970; and
a 50 percent rating, effective from December 1, 1970.
(3) In December 1973, the RO continued the 50 percent
rating for schizophrenia.
(4) In January 1976, the RO continued the 50 percent
rating for schizophrenia.
(5) In June 1976, the RO denied the claim for a TDIU
rating.
(6) In April 1978, the RO continued the 50 percent
rating for schizophrenia.
(7) In March 1985, the RO awarded a temporary total
rating for the schizophrenia effective from September
1982 to March 1983, based on that VA hospitalization;
it then assigned a 50 percent rating as of April 1,
1983.
(8) In November 1986, the RO continued the 50 percent
rating for schizophrenia.
(9) In August 1988, the RO continued the 50 percent
rating for schizophrenia
(10) In August 1995, the RO granted a 100 percent
evaluation for schizophrenic disorder, residual type with
depressive features, effective from April 4, 1994.
Under the provisions of 38 C.F.R. § 3.105(a) (2004), previous
determinations that are final and binding will be accepted as
correct in the absence of clear and unmistakable error (CUE).
However, if the evidence establishes CUE, the prior decision
will be reversed and amended.
In determining whether a prior determination involves CUE,
the Court has established a three-prong test. The three
prongs are as follows: (1) either the correct facts, as they
were known at the time, were not before the adjudicator
(i.e., there must be 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 Damrel v. Brown, 6 Vet. App.
242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314
(1992).
The Court has also stated that 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. Thus, even where the premise of 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. Fugo v. Brown, 6 Vet.
App. 40,43-44 (1993).
The veteran contends that the RO failed in its duty to assist
by not obtaining over the years various items of evidence
(SSA records, treatment records from a fee-basis
psychiatrist), in connection with the prior RO rating
decisions (that is, the RO rating decisions that preceded the
RO decision that ultimately awarded a 100 percent rating for
his service-connected schizophrenia as of April 4, 1994). He
also contends that the RO failed to assist him by failing to
provide adequate examinations that, he contends, would have
demonstrated his unemployability or the actual severity of
his service-connected schizophrenia. He contends that the
RO's repeated failures to assist him in the development of
his claims constituted either CUE or, in the alternative,
rendered those earlier RO rating decisions non-final. See
Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). He also
contends that the prior RO rating decisions did not address
various statements regarding the veteran's unemployability.
At the time of the Board's December 1999 decision, a failure
in the duty to assist was not considered a feasible basis for
CUE. See Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994).
However, subsequently, the United States Court of Appeals for
the Federal Circuit held that certain failures (in that case,
the failure to obtain service medical records and to notify
the veteran of such failure) constituted "grave procedural
error" that in effect vitiated the finality of a prior
rating decision. Hayre, supra. However, after the filing of
the parties' joint motion with the Court in 2001, the Federal
Circuit overruled its decision in Hayre. Cook v. Principi,
318 F.3d 1334 (Fed. Cir. 2002). In overruling Hayre, the
Federal Circuit emphasized in Cook that a purported failure
in the duty to assist cannot give rise to CUE; nor does it
result in "grave procedural error" so as to vitiate the
finality of a prior, final decision.
Therefore, in this case, the Board cannot entertain the
argument that any failure in the duty to assist by the VA
rendered any of the rating decisions at issue clearly and
unmistakably erroneous or nonfinal by reason of the
commission of a "grave procedural error."
Rather, the Board must consider whether any of the RO rating
decisions at issue were clearly and unmistakably erroneous on
the basis of the three prongs articulated above: (1) either
the correct facts, as they were known at the time, were not
before the adjudicator (i.e., there must be 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 Damrel, supra; Russell, supra.
The Board emphasizes that determination regarding CUE must be
made on the basis of the law and evidence at the time of the
decision at issue. In 1992, the Court held that VA had
constructive notice of VA-generated documents. See Bell v.
Derwinski 2 Vet. App. 611, 613 (1992) (per curiam). However,
this holding from Bell is not retroactive prior the date of
issuance of Bell. Damrel v. Brown, 6 Vet. App. 242, 246
(1994); see VAOPGPREC 12-95 (May 10, 1995). Thus, a CUE
claim cannot be predicated solely on the basis of
constructive notice of VA-generated documents prior to the
1991 issuance of Bell. In this particular case, at the time
of each of the rating decisions in paragraphs (1) to (9)
above, the "constructive-notice" doctrine was not in
existence. In fact, the Court itself did not exist.
Therefore, the Board may not consider the argument that the
VA had constructive notice of any VA-generated documents in
connection with the allegation of CUE in the RO rating
decisions from 1969 to 1988.
Initially, the Board notes that the diagnostic code for
evaluating schizophrenia was essentially unchanged from 1970
through most of 1996. Compare 38 C.F.R. § 4.132, Diagnostic
Code (DC) 9204 (1970) with 38 C.F.R. § 4.132, DC 9204 (1996).
Under this code, a 100 percent rating was warranted for
schizophrenia with active psychotic manifestations of such
extent, severity, depth, persistence, and bizarreness as to
produce complete social and industrial inadaptability. A 70
percent rating was warranted for schizophrenia with lesser
symptomatology than the symptoms present for a 100 percent
rating that produced considerable impairment of social and
industrial adaptability. A 50 percent rating was warranted
for schizophrenia producing considerable impairment of social
and industrial adaptability. 38 C.F.R. § 4.132, DC 9204
(1970).
Also, with regard to claims involving total disability
ratings based on individual unemployability, the regulations
provided certain special considerations under 38 C.F.R.
§ 4.16© from 1989 to 1996. Under that subsection during
those years, the particular numerical criteria necessary for
finding a TDIU rating were not applicable when the only
compensable service-connected disability was a mental
disorder rated 70 percent that precluded a veteran from
securing or maintaining gainful employment; in such cases, a
100 percent schedular rating was warranted. However, as this
provision did not take effect until 1989, it does not apply
in consideration of claims of CUE regarding all of the rating
decisions listed in paragraphs (1) through (9) above (that
is, 1970 through 1988).
The Board will first address the very earliest RO rating
decision that the veteran alleges to have been clearly and
unmistakably erroneous. The evidence at the time of the July
1970 RO rating decision included an October 1969 VA
psychiatric examination and a March 1970 medical certificate.
Records of the March to June 1970 psychiatric hospitalization
were not fully associated with the claims file; only a March
1970 medical certificate was of record. The evidence of
record at the time of the RO's July 1970 rating decision
included diagnosis of mild to moderate disability due to
anxiety reaction and a 1970 hospitalization (the full records
of which were not yet before the RO at the time) for acutely
psychotic symptoms.
By the time of the RO's May 1971 rating decision (which
ultimately awarded a 50 percent rating for schizophrenia
after a period of a temporary 100 percent rating due to
hospitalization), the evidence of record included partial
notes from two VA hospitalizations in 1970, including a
November 1970 discharge summary describing severe
schizophrenia with some improvement in symptoms on treatment
and therapy.
By the time of the RO's December 1973 rating decision, a
November 1973 VA examination was added to the record. That
examination showed moderately severe to severe disability due
to schizophrenia, with poor mental concentration and impaired
judgment, as well as trembling fingers, bad eye contact, and
bizarre behavior. While service connection was in effect for
a shell fragment wound with scars from a left leg injury
during service in Vietnam during the War, that disability was
rated only 10 percent. Thus, the only evidence of record
indicated that the veteran's service-connected mental
disability was producing bizarre behavior with effects on his
employability and daily functioning. The veteran had a
demonstrated track record of lengthy hospitalizations; he was
unemployed, in part because of the mere length and frequency
of his hospitalizations; he had active hallucinations; and of
particular note, his behavior was described as bizarre, with
various problems involving social adaptability, trembling,
and other symptoms.
In this case, at this time, had the RO properly applied the
diagnostic criteria then in effect, it would have undebatably
resulted in a finding of complete social and industrial
inadaptability. 38 C.F.R. § 4.132, DC 9204 (1970).
The Board concludes that at the time of the RO's December
1973 rating decision, on the basis of the record and law that
existed at the time of that decision, the RO did not
correctly apply the provisions of the rating schedule for
schizophrenia. This error was undebatable and of the sort
which, had it not been made, would have manifestly changed
the outcome at the time it was made. See Damrel, supra;
Russell, supra.
The Board notes that there was truly very little contrary
evidence against the veteran's claim for more compensation at
the time of the RO's December 1973 rating decision. The
October 1969 VA examination that had noted mild to moderate
disability due to anxiety reaction had been superseded by
many clear intervening events, specifically, the veteran's
multiple hospitalizations in 1970. Thus, the Board
underlines that it is not engaging in any selective
"reweighing" of the evidence at this time. On the
contrary, the Board has concluded that there was a failure to
apply the rating criteria in effect at the time of the
December 1973 RO rating decision. That this error was
undebatable, and that the outcome would have been manifestly
changed but for that error.
The Court has held that when it is clear, on the face of the
decision being assailed for CUE, that the error alleged did
in fact occur and would manifestly have changed the outcome
of the case, it will reverse, rather than only vacate and
remand a Board decision. In those cases, a remand is
unwarranted if it would serve only to fulfill a procedural
duty that would unnecessarily delay and burden agency
resources. Sondel v. West, 13 Vet. App. 213, 221 (1999).
The Board reiterates, as it discussed above, that it is not
drawing any conclusions with regard to the adequacy of the
record at the time of the December 1973 rating decision. The
Board is accepting, for purposes of this review, the evidence
and the laws as they were at the time of that rating
decision.
By the time of the next RO decision in January 1976, the
evidence had further accumulated, showing moderately severe
to severe disability, with various symptoms such as
aggressive and violent tendencies, crying spells, auditory
and olfactory hallucinations, and socialization difficulties.
Accordingly, the Board concludes that RO's December 1973
rating decision was clearly and unmistakably erroneous in not
awarding a 100 percent rating for the veteran's service-
connected schizophrenia as of the date of the November 1973
VA examination. To that extent, the veteran's appeal is
granted, and the Board need not consider the veteran's
allegations of CUE in the post-1973 rating decisions.
With regard to pre-December 1973 rating actions, as cited
above, the Board finds no CUE. The VA examination of October
1969 provides a basis for the RO to have decided at that time
the veteran's claim in the manner that it did. This
examination, which found a mild to moderate disorder, clearly
supports the rating actions of this time period. A valid
claim of CUE requires more than a disagreement as to how the
facts were weighed or evaluated. See Crippen v. Brown,
9 Vet. App. 412 (1996). A disagreement with how the RO
evaluated the facts (in this case, the VA examination of
October 1969 vs. other reports during this time period) is
inadequate to raise the claim of clear and unmistakable
error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995).
The parties directed that the Board consider whether the
veteran might be entitled to an earlier effective date for
the assignment of a total rating based on the then-recent
Federal Circuit decision in Roberson v. Principi, 251 F.3d
1378 (Fed. Cir. 2001). The Court's January 2002 remand
granted this joint motion, thus incorporating the elements
therein, and the Board is required to comply with the Court's
remand. See Stegall v. West, 11 Vet. App. 268 (1998).
According to the Federal Circuit, in Roberson it held that
the VA must give a sympathetic reading to a veteran's filings
by determining all potential claims raised by the evidence,
applying all relevant laws and regulations." Moody v.
Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Since Moody,
VA's General Counsel has issued binding guidance:
In deciding whether there was CUE in a final VA
decision based upon an allegation that VA failed
to recognize an earlier claim, the RO or Board
should determine whether, construing the pleadings
at issue in the veteran's favor, it is obvious and
undebatable that there was an error in the
decision and that the error clearly affected the
outcome.
VAOPGCPREC 4-2004, 7 (May 28, 2004) (superseding VAOPGCPREC
12-2001 (July 6, 2001)); see also 38 C.F.R. § 19.5 (2004)
(the Board is bound by, in part, precedent opinions of VA's
General Counsel).
In this case, aside from the claims that were discussed in
the RO's July 1970 and May 1971 rating decisions, there are
no other earlier pleadings that could serve as a basis for a
claim for a total rating for schizophrenia. In fact, the
Board has fully considered whether either of these two
decisions were clearly and unmistakably erroneous.
Accordingly, no further consideration is necessary under
Roberson, Moody, or their progeny and associated VA General
Counsel opinions.
ORDER
An effective date of November 7, 1973, for a 100 percent
rating for schizophrenia is granted.
____________________________________________
JOHN J. CROWLEY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
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