Bva Cue Granted - Eed Of 8 Years

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http://www.va.gov/vetapp13/Files2/1314694.txt

Citation Nr: 1314694

Decision Date: 05/03/13 Archive Date: 05/15/13

DOCKET NO. 09-18 280 ) DATE

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On appeal from the

Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUE

Entitlement to an effective date earlier than May 9, 2002 for the award of service connection for bipolar disorder (previously considered as adjustment disorder), to include on the basis of alleged clear and unmistakable error (CUE) in a March 2003 RO rating decision that granted service connection for bipolar disorder, and a June 1996 rating decision that denied service connection for an adjustment disorder with mixed emotional features.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel

INTRODUCTION

The Veteran served on active duty from August 1989 to December 1994.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In February 2011, the Veteran testified during a hearing at the Board's Office in Washington, D.C., the transcript of which is on file.

The Board remanded this case in July 2011. It was then observed that the appeal, as certified, included several theories of CUE as support for a claimed earlier effective date of service connection for psychiatric disability. The Board consolidated these theories into the single question of whether there was CUE in prior RO rating decisions on the merits of entitlement to service connection for a psychiatric disorder.

FINDINGS OF FACT

1. The Veteran filed an original claim for service connection for a psychiatric disorder within one-year following his December 13, 1994 discharge from service.

2. The June 1996 RO rating decision which denied service connection for adjustment disorder with mixed emotional features was undebatably erroneous in the classification of adjustment disorder as a congenital disorder, not amenable to service connection, and the facts were not then before the adjudicator.

CONCLUSIONS OF LAW

1. There was CUE in the June 1996 RO rating decision denying service connection for adjustment disorder with mixed emotional features. 38 U.S.C.A. § 5109A(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.105(a) (2012).

2. The criteria are met for an earlier effective date of December 14, 1994 for the award of service connection for an acquired psychiatric disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012).

However, the VCAA does not generally apply in petitions for revision due to CUE in a prior RO rating decision, as observed by the U.S. Court of Appeals for Veterans Claims (Court). See Parker v. Principi, 15 Vet. App. 407 (2002), citing Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); See also 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). In any event, the Board is granting the maximum benefit sought on appeal of an earlier effective date of service connection for bipolar disorder from immediately following service discharge.

Generally, the law for the determination of an effective date of an award of disability compensation are set forth at 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of compensation benefits that is based on an original claim, claim reopened after a final disallowance, or claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400.

The specific provision for the assignment of an effective date for an award of compensation benefits following the grant of an original claim for service connection, is that the effective date will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service, and otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i).

The assigned effective date of service connection for a claim that has been reopened (based upon receipt of "new and material" evidence) is that of the date of receipt of the claim to reopen, or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400®.

In a June 1996 rating decision, the RO denied the Veteran's original claim for a psychiatric disorder, then considered as an adjustment disorder with mixed emotional features. Following the June 1996 denial of benefits, the Veteran did not file a timely Notice of Disagreement (NOD) to commence an appeal, and that decision became final and binding on the merits. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.201.

In a March 2003 rating decision, the RO reopened the claim based on receipt of new and material evidence, and granted service connection for bipolar disorder, type 1, with episodes of psychosis, and assigned a 100 percent disability evaluation, effective May 9, 2002. The assignment of May 9, 2002 as the effective date of service connection was based on the date of receipt of the Veteran's petition to reopen. See again, 38 C.F.R. § 3.400®.

A timely NOD was filed regarding the effective date of service connection for bipolar disorder, and the RO issued a January 2004 Statement of the Case (SOC) on the issue, however, the Veteran did not file a timely VA Form 9 (or other qualifying Substantive Appeal) as the final stage in the appellate process. Consequently, the March 2003 rating decision (and effective date assigned therein) also became final and binding.

The Veteran now seeks an earlier effective date of service connection for bipolar disorder. Given that the assigned effective date was pursuant to a final March 2003 RO rating decision, strictly speaking, the Veteran has raised a "freestanding" claim that would not permit revisitation the RO's prior effective date determination. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (where a claim for an earlier effective date represents disagreement with an effective date assigned pursuant to a final RO rating decision, in the absence of an attempt to vitiate the finality of that decision through an allegation of CUE, the claimant has merely raised a "freestanding" effective date claim that cannot remove the finality of the prior decision).

The only remaining legal challenge the Veteran may bring, and indeed has done in this case, is to allege CUE in prior RO rating decisions with a bearing on the assigned effective date for service connection for bipolar disorder. The Veteran has essentially argued CUE within the June 1996 rating decision as a means to establish an effective date of service connection immediately subsequent to his December 1994 discharge from military service. See again, 38 C.F.R. § 3.400(b)(2)(i).

He argues that there was CUE "in early diagnosis" of his disorder and that the RO accepted a diagnosis of adjustment disorder over the later diagnosed bipolar disorder, based upon an inadequate VA Compensation and Pension examination. CUE is further alleged regarding an RO failure to consider his complete service treatment records (STRs), only reviewing records dating up until November 3, 1994, when in fact the Veteran had undergone in-service psychiatric hospitalization in from November 18-21, 1994. As to this second averred error, the Veteran contends that the correct facts were not before the VA adjudicator given the omission of the late-November 1994 hospitalization record, and it was not until May 2002 that this information was properly used and the Veteran was granted service connection for a psychiatric disorder.

Regarding the March 2003 rating decision that ultimately granted service connection, the Veteran and his representative do not have any specific identified instance of error. The mere allegation 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). See also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). However, the Board need not reach the question of CUE in the March 2003 rating decision, as CUE is already found in the prior June 1996 rating decision, thus rendering the latter CUE allegation a moot issue.

Under applicable law, previous RO decisions that were not timely appealed are final and binding on the veteran based on the evidence then of record and will be accepted as correct in the absence of CUE. The prior decision will be reversed or amended only where the evidence establishes this error. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a).

CUE is defined as a very specific and rare kind of error. "It is the kind of error, of fact or 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." See Fugo, 6 Vet. App. at 43-44.

The Court has indicated that a three-pronged test is used to determine whether CUE was in a prior decision: (1) it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).

In order for an alleged error to constitute CUE, it must have consisted of an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts, not merely misinterpretation of the facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). A claim of CUE on the basis that the previous adjudication at issue "improperly weighed and evaluated the evidence" does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43.

A breach of VA's duty to notify and assist likewise does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 418 (1996); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). This includes situations when the RO is alleged to have breached the duty to assist a veteran in obtaining relevant service medical records that may render a prior rating decision non-final, or another kind of "grave procedural error" ostensibly has occurred. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003) (en banc) (overruling Hayre v. West, 188 F.3d 1327, 1334 (Fed. Cir. 1999)). However, the failure to apply a relevant law or regulation is an appropriate subject for a claim of CUE. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 329 (1999), citing Olson v. Brown, 5 Vet. App. 430, 433 (1993).

The Board finds that the criteria for CUE are met with regard to the June 1996 RO rating decision that denied service connection for adjustment disorder with mixed emotional features and will grant the appeal.

The Board is thereby assigning an earlier effective date of December 14, 1994 for service-connected psychiatric disability, the day following separation from service and also given that the original claim was filed within one year of service discharge, which is the earliest allowable effective date under the law.

The June 1996 rating decision denied service connection primarily on the grounds that VA examination had diagnosed "adjustment disorder with mixed emotional features," and this disorder was considered a congenital or developmental defect which was not subject to service connection under VA law. The RO further observed that STRs ostensibly showed no record of complaint of or treatment for a mental condition (based on a stated review of "service medical records for the period June 23, 1989 to November 3, 1994").

Evidence considered at that time consisted of STRs, which on the Board's present review disclose a November 7, 1994 self-referral by the Veteran for psychiatric treatment, the results of which are not provided; no further documentation of mental health treatment is currently on file.

However, the Veteran's November 1994 formal claim (VA Form 21-526) for disability compensation nonetheless self-reported in-service psychiatric hospitalization at Madigan Army Medical Center from November 18 through November 21.

A January 1995 VA psychiatric examination was ordered in connection with the claim. In the clinical history summary, the examiner observed that "n November, according to the records, [the Veteran] was hospitalized at Madigan General Hospital in the Psychiatric Unit from November 17 to November 21, and he was given a diagnosis of adjustment disorder with disturbance of mood and conduct. He was not placed on any medication, and he had some follow-up visits at the Mental Hygiene Clinic following his discharge from the hospital." Following further evaluation, the diagnosis given was adjustment disorder, with mixed emotional features; and marital problems.

In June 1996, the facts of the Veteran's case were not before the adjudicators and there was an underlying legal error of ruling out the Veteran's diagnosed adjustment disorder as a disability that may be legally recognized as a basis for service connection.

VA law does indeed exclude some congenital disorders, including personality disorders, as the basis for awarding service connection under 38 C.F.R. § 3.303© (subject to an exception where there has been in-service superimposed injury or disease). This notwithstanding, under regulations applicable in 1996, an adjustment disorder with depressed mood was recognized as a psychoneurotic disorder subject to service connection and evaluated under 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996). Moreover, given these circumstances as in the record, the Board does not routinely place an adjustment disorder strictly within the category of "personality disorders."

This key distinction does not resolve the Veteran's CUE claim alone. There still must be proof of in-service incurrence of a psychiatric disorder, the indispensable element of a causal nexus to service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also Duenas v. Principi, 18 Vet. App. 512, 516 (2004); Pond v. West, 12 Vet. App. 341, 346 (1999).

The Board observes that within the STRs there is the noted nonspecific, terse notation of a November 7th self-referral for mental health treatment. However, very shortly after the Veteran's discharge, the January 1995 VA examination report describes in considerable detail having reviewed actual records of the Veteran's in-service psychiatric hospitalization at Madigan Army Medical Center in late-November 1994. Indeed, those records appear to have been the basis for diagnosing an adjustment disorder continuing post-service.

Even without surmise, there is no other possibility but to consider that records of in-service psychiatric hospitalization of late November 1994 were once available, and may have been misplaced. (A more recent follow-up search with the Madigan facility indicated no further treatment records were on file.) It cannot be doubted that records of the November 1994 psychiatric hospitalization were available in one form or another at the time of the June 1996 RO rating decision in question.

Therefore, having considered the available factual circumstances, as well as correct principles of governing law, the Board finds the June 1996 RO rating decision that at first denied service connection for a psychiatric disorder to be the product of CUE. An effective date of service connection may therefore be awarded as of December 14, 1994, immediately following service discharge, as the assignable effective date had the June 1996 decision initially been a favorable adjudication.

The RO will assign an appropriate disability rating for the period of service connection now granted.

ORDER

An earlier effective date of December 14, 1994 for the award of service connection for an acquired psychiatric disorder is granted, based upon a finding of CUE in the June 1996 RO rating decision that originally denied service connection for an adjustment disorder with mixed emotional features.

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VITO A. CLEMENTI

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs