Jump to content
  • 0

2005 - Cue Eed Back To 1973 -


carlie

Question

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(:lol:(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(:lol:(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

Link to comment
Share on other sites

  • Answers 2
  • Created
  • Last Reply

Top Posters For This Question

Top Posters For This Question

2 answers to this question

Recommended Posts

Carlie- more great work here!

Your research on these 2 CUEs granted is great----

One thing a vet has to consdier on a CUE going back to a very old decision-

it is hard to find the regs in the past- but they haven't changed that much as the 2 cues you posted show-

The rating schedule has not changed significantly in about 50 years- except for certain conditions- and before 1983 -PTSD didnt appear as "PTSD" but still a rating for anxiety disorders did-

Link to comment
Share on other sites

Berta,

So far, the only way I've been able to find the old regs. is by researching old cases.

I feel there's so much to be learned from them.

carlie

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.


×
×
  • Create New...

Important Information

{terms] and Guidelines