2010 Bva Decision Grants Cue On 1973 Rating Decision

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http://www4.va.gov/vetapp10/files1/1001265.txt

Citation Nr: 1001265

Decision Date: 01/08/10 Archive Date: 01/15/10

DOCKET NO. 08-04 783 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Jackson,

Mississippi

THE ISSUE

Whether there was clear and unmistakable error (CUE) in a

December 1973 rating decision that denied service connection

for paranoid schizophrenia.

REPRESENTATION

Appellant represented by: Samuel M. Tumey, Attorney-at-

Law

ATTORNEY FOR THE BOARD

K. Fitch, Counsel

INTRODUCTION

The Veteran had active military service from August 1969 to

September 1971. He had been adjudicated as incompetent

prior to September 2006, but in a rating decision dated in

September 2006, the RO found that the Veteran was competent

for VA purposes. As such the Veteran is the appellant in

this case.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a May 2007 rating decision of a

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

that found no clear and unmistakable error in a December

1973 rating decision that denied entitlement to service

connection for paranoid schizophrenia. The Veteran filed a

notice of disagreement with respect to this decision in June

2007, and the RO issued a statement of the case dated in

December 2007. The Veteran's substantive appeal was

received by the RO in February 2008.

In a June 1997 statement from the Veteran, he requested an

earlier effective date for the grant of the 100 percent

evaluation for his schizophrenia. As this matter has not

yet been adjudicated by the Board, it is referred to the RO

for appropriate disposition.

FINDINGS OF FACT

1. Entitlement to service connection for paranoid

schizophrenia was denied by the RO in a December 1973 rating

decision. The Veteran was notified of this decision and his

appellate rights in a January 1974 RO letter, and he did not

file a notice of disagreement.

2. In a July 1981 rating decision, the RO denied the

Veteran's application to reopen his claim of entitlement to

service connection for schizophrenia; the Veteran appealed

the RO's decision to the Board which, after further

development, reopened the claim and granted entitlement to

service connection for paranoia in a decision dated in

August 1983.

3. The RO effectuated the August 1983 Board decision by way

of a September 1983 rating decision, and service connection

was established, effective April 1, 1981, the date of

receipt of the application to reopen the service connection

claim.

4. The December 1973 rating decision was clearly and

unmistakably erroneous in that it contained undebatable

error, and as a result manifestly changed the outcome of the

decision.

CONCLUSION OF LAW

The December 1973 rating decision which denied service

connection for paranoid schizophrenia was clearly and

unmistakably erroneous. 38 U.S.C.A. §§ 5110 (West 2002);

38 C.F.R. § 3.105 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board finds that the Veterans

Claims Assistance Act of 2000 (VCAA) is not applicable to

this case as a matter of law. The United States Court of

Appeals for Veterans Claims (Court) has held that the VCAA

does not apply to CUE actions. See Livesay v. Principi, 15

Vet. App. 165 (2001)(en banc) (holding VCAA does not apply

to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302

(2001) (holding VCAA does not apply to RO CUE claims). The

general underpinning for the holding that the VCAA does not

apply to CUE claims is that regulations and numerous legal

precedents establish that a review for CUE is only upon the

evidence of record at the time the decision was entered

(with exceptions not applicable in this matter). See Fugo

v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240

F.3d 1348 (Fed. Cir. 2001) (affirming the Court's

interpretation of 38 U.S.C. § 5109A that RO CUE must be

based upon the evidence of record at the time of the

decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682

(Fed. Cir. 2000) (upholding Board CUE regulations to this

effect).

Criteria & Analysis

The Veteran in this case contends that the December 1973

rating decision which initially denied service connection

for paranoid schizophrenia contains CUE and, therefore,

service connection should be awarded as of the date he filed

his original claim.

Following notification of an initial review and adverse

determination by the Regional Office (RO), a notice of

disagreement must be filed within one year from the date of

notification thereof; otherwise, the determination becomes

final. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.

Under the provisions of 38 C.F.R. § 3.105(a), previous

determinations that are final and binding, including

decisions of service connection, will be accepted as correct

in the absence of clear and unmistakable error. In order

for a claim of CUE to be valid, there must have been an

error in the prior adjudication of the claim; either the

correct facts, as they were known at the time, were not

before the adjudicator or the statutory or regulatory

provisions extant at the time were incorrectly applied.

Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v.

Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3

Vet. App. 310, 313-14 (1992) (en banc). Further, 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 a determination that there was CUE

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

of the prior adjudication in question. Id. Simply to claim

CUE on the basis that the previous adjudication improperly

weighed and evaluated the evidence can never rise to the

stringent definition of CUE, nor can broad-brush allegations

of "failure to follow the regulations" or "failure to

give due process," or any other general, non-specific claim

of "error" meet the restrictive definition of CUE. Fugo

v. Brown, 6 Vet. App. 40, 44 (1993).

Clear and unmistakable error is an administrative failure to

apply the correct statutory and regulatory provisions to the

correct and relevant facts. It is not mere

misinterpretation of facts. Oppenheimer v. Derwinski, 1

Vet. App. 370, 372 (1991). It is a very specific and rare

kind of error of fact or law that compels the conclusion, as

to which reasonable minds could not differ, that the result

would have been manifestly different but for the error.

Fugo v. Brown, 6 Vet. App. 40, 43 (1993).

Where evidence establishes CUE, the prior decision will be

reversed or amended. For the purpose of authorizing

benefits, the rating decision which constitutes a reversal

of a prior decision on the grounds of CUE has the same

effect as if the corrected decision had been made on the

date of the reversed decision. 38 C.F.R. §§ 3.104(a),

3.400(k).

The Court has propounded a three-pronged test to determine

whether clear and unmistakable error is present in a prior

determination. First, either the correct facts, as they

were known at the time, were not before the adjudicator

(i.e., more than a simple disagreement as to how the facts

were weighed or evaluated) or the statutory or regulatory

provisions extant at the time were incorrectly applied.

Second, 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." Third, a

determination that there was clear and unmistakable error

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

time of the prior adjudication in question. Damrel v.

Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v.

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

The relevant laws and regulations in effect in December 1973

with respect to awards of service connection were

essentially unchanged from those in effect at present;

although the relevant code numbers have since been revised.

Service connection will be granted if it is shown that the

veteran suffers from disability resulting from an injury

suffered or disease contracted in line of duty, or for

aggravation of a preexisting injury suffered or disease

contracted in line of duty, in the active military, naval,

or air service. 38 U.S.C.A. §§ 310, 331 (West 1970) (now

codified as 1110, 1131 (West 2002)); 38 C.F.R. § 3.303

(1973, 2009). That an injury occurred in service alone is

not enough; there must be chronic disability resulting from

that injury. If there is no showing of a resulting chronic

condition during service, then a showing of continuity of

symptomatology after service is required to support a

finding of chronicity. 38 C.F.R. § 3.303(b). Additionally,

for veterans who have served 90 days or more of active

service during a war period or after December 31, 1946,

certain chronic disabilities, such as psychoses, are

presumed to have been incurred in service if manifested to a

compensable degree within one year of discharge from

service. 38 U.S.C.A. §§ 312, 333 (1970) (now codified as

1112, 1133 (West 2002)); 38 C.F.R. §§ 3.307, 3.309. Service

connection may also be granted for any disease diagnosed

after discharge, when all the evidence, including that

pertinent to service, establishes that the disease was

incurred in service. 38 C.F.R. § 3.303(d).

On September 24, 1973, the Veteran filed a claim of service

connection for paranoid schizophrenia. The evidence on file

at that time consisted of service treatment records and VA

medical records.

The Veteran's service treatment records indicate that in

June 1971 the Veteran was hospitalized for heroin addiction.

He was noted to be taking part in an amnesty program for his

addiction, but went AWOL. The Veteran was also diagnosed

with paranoid schizophrenia. A Clinical Record Cover Sheet

dated in June 1971 reflects that paranoid schizophrenia was

incurred in the line of duty, and heroin addiction was not

incurred in the line of duty and was due to the Veteran's

own misconduct. A July 1971 Clinical Record Cover Sheet

reflects a diagnosis of drug addiction, heroin, manifested

by withdrawal symptoms; treated and cured. He was also

noted to have predisposition of history of mental illness in

his father and other family members, and minimal impairment

for further military duty. It was noted that the drug

addiction was not incurred in the line of duty, and was due

to his own misconduct. The Veteran was recommended to be

returned to duty for an "Early out - ETS" discharge. The

Veteran's separation examination indicated that the Veteran

was normal in all respects.

VA treatment records on file reflect that the Veteran was

hospitalized in September 1973, with a diagnosis of

schizophrenia, paranoid type. The physician indicated that

personality disorder should be ruled out and that further

treatment and testing were in order. A November 1973

treatment record reflects that the Veteran reported being

treated and hospitalized at Searcy Hospital in Mobile,

Alabama, for one and a half months but was vague about when.

Based on the foregoing, the RO, in December 1973, denied

service connection for paranoid schizophrenia. The RO

reasoned that the Veteran had paranoid schizophrenia as a

result of his heroin addiction, but that this diagnosis was

dropped at the time of the Veteran's discharge from the

hospital. The RO also noted that the Veteran's separation

examination made no reference to treatment for a nervous

condition or for the heroin addiction. The RO noted that

the Veteran was presently hospitalized with a diagnosis of

schizophrenia, paranoid type, but with personality disorder

to be ruled out. The RO concluded that the schizophrenia

diagnosed in service was drug induced and of an acute nature

without permanent residuals or continuity thereof, and

determined that the presently diagnosed schizophrenia was

not related thereto. The Veteran did not file a notice of

disagreement, thus the rating determination is final.

38 U.S.C.A. § 7105.

After the December 1973 RO decision became final, the

Veteran submitted an application to reopen his claim of

entitlement to service connection for schizophrenia on two

additional occasions. In October 1975 and September 1979,

the RO denied reopening the Veteran's claim on the basis

that new and material evidence had not been received. The

Veteran was advised of the decisions in October 1975 and

September 1979, respectively, and his appellate rights. The

Veteran did not file a notice of disagreement with regard to

either rating decision, thus such rating determinations are

final. 38 U.S.C.A. § 7105.

In April 1981, the RO received an additional application to

reopen his claim of entitlement to service connection for

schizophrenia. In a July 1981 rating decision, the RO

denied the Veteran's application to reopen his claim of

entitlement to service connection for schizophrenia. The

Veteran filed a timely appeal of this decision to the Board

which, after further development, reopened the claim and

granted entitlement to service connection for paranoia in a

decision dated in August 1983. Such decision was based on

receipt of two medical opinions, one from a VA physician,

and another from an independent medical expert. The VA

physician opined that the Veteran's paranoid schizophrenia

was present during the Veteran's service, and the

independent medical expert opined that the Veteran's

paranoid schizophrenia manifested during the one-year period

for presumptive service connection for a psychosis. On such

basis, the Board concluded that at the very least, the

Veteran's acquired psychiatric disability manifested during

the presumptive period, and service connection was

warranted.

In this case, the Veteran, through his representative,

contends that the December 1973 RO decision contains clear

and unmistakable error in that schizophrenia was

presumptively service-connected as a chronic disability

under 38 C.F.R. § 3.303(b) in effect at the time of the

December 1973 decision. He also contends that the RO should

have requested the records of the Veteran's treatment at the

Searcy County Hospital in Mobile, Alabama from 1973. These

records, he contends, would have demonstrated that the

Veteran's condition was entitled to presumptive service

connection as having been manifest to an extent of 10

percent or more within one year of his discharge from the

service.

Initially, the Board notes that while the failure of the RO

in 1973 to obtain the requested medical records may have

affected the RO's decision in December 1973, a breach of the

duty to assist creates only an incomplete rather than an

incorrect record. See Cook v. Principi, 318 F.3d 1334,

1344-47 (Fed. Cir. 2002) (en banc); Elkins v. Brown, 8 Vet.

App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377,

383-84 (1994). VA's breach of its duty to assist cannot

form a basis for a claim of CUE. See Tetro v. Gober, 14

Vet. App. 100, 109 (2000).

The Board, however, does note that upon review of the

evidence of record on file, there was incontrovertible

medical evidence that the Veteran's schizophrenia was

incurred in service.

As detailed hereinabove, paranoid schizophrenia was

diagnosed in June 1971, and a determination was made that

such mental disability was incurred in the line of duty. It

is clear that in rendering an adjudication in December 1973,

the RO did not consider the fact that trained military

medical personnel were of the opinion that his psychiatric

disability was incurred in the line of duty. The RO

concluded in December 1973 that the Veteran's schizophrenia

was drug induced and of an acute nature without permanent

residuals or continuity therof. Such conclusion though is

in complete contradiction with the findings of trained

military medical personnel in June 1971 that while his

heroin addiction was not incurred in the line of duty and

was due to his misconduct, his paranoid schizophrenia was

incurred in the line of duty. The service treatment records

are devoid of a finding that such paranoid schizophrenia was

drug induced or an acute condition. It is clear that if the

RO had duly considered the fact that trained military

medical personnel had concluded based on observation,

evaluation, and treatment of the Veteran that his

schizophrenia was incurred in service, that such

consideration would have manifestly changed the outcome of

the decision. Moreover, per a recent decision of the U.S.

Court of Appeals for the Federal Circuit (Federal Circuit),

when a chronic disease is shown in service, subsequent

manifestations of the same chronic disease at any later

date, however remote, are service connected. 38 C.F.R.

§ 3.303(b), see Groves v. Peake, 524 F.3d 1306 (Fed. Cir.

2008) (holding that when a chronic disease is identified in

service and at any time after service, service connection

will be granted without the need for nexus evidence). In

this case, service treatment records reflect a diagnosis of

paranoid schizophrenia in June 1971, and the evidence of

record on file at the time of the December 1973 decision

reflects that he was hospitalized in September 1973 (two

years after separation from service) due to paranoid

schizophrenia. Thus, a chronic disease was shown in

service, and subsequent manifestations of the same chronic

disease was shown within two years of separation from

service.

Thus, based on the following, the evidence supports a

finding that the December 1973 rating decision contained CUE

in denying the claim of service connection for paranoid

schizophrenia.

ORDER

The December 1973 rating decision which denied service

connection for paranoid schizophrenia contained clear and

unmistakable error. The appeal is granted.

____________________________________________

M.W. KREINDLER

Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs