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Berta

CUE BVA award back to 1981!

Question

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files2/1615671.txt

A fairly recent decision....and a great case for any Vietnam vet denied for anxiety or nervous disorder pre 1982-82 when the VA began to finally diagnose,treat , and grant claims for PTSD. 

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Good, Berta.  

I think its instructive to dissect pertinet portions of this CUE:

The Court has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and 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)).

If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error.  Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44.  If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law.  Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994).  Further, VA's failure in the duty to assist cannot constitute CUE.  See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003).


Broncovet says this is what we call "out come determinative error", above.  

In the present case, the Veteran alleges CUE in a prior April 1982 rating decision that denied service connection for atypical anxiety disorder.  The pertinent laws and regulations at the time of this decision were similar, if not essentially the same, as they are now.  First, 38 C.F.R. § 3.303(a) provided then, as now, that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 C.F.R. § 3.303(a) (1982).  Second, both 38 U.S.C.A. § 5107 and 38 U.S.C.A. § 3007 (West 1982) (the relevant statute at the time of the April 1982 RO rating decision) reflect that a Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Third, 38 C.F.R. § 3.102, both then and now, states that when a reasonable doubt arises due to an approximate balance of positive and negative evidence, such doubt shall be resolved in favor of the Veteran.

BRONCOVET notes that BOD is present in this CUE.  


After considering the Veteran's contentions and the evidence of record at the time of the April 1982 RO rating decision, the Board finds clear error in the April 1982 rating decision rationale.  The rating decision states that the evidence of record did not show that the diagnosed atypical anxiety disorder was related to service.  In rendering the decision, the RO only discussed the symptoms noted in the March 1982 VA mental health examination, and made no mention of the March 1982 VA examiner's opinion that the symptoms may have been related to service in the Republic of Vietnam.  Further, there is no indication that the RO addressed, or even considered, the March and June 1981 VA treatment records suggesting that the anxiety symptoms were related to service in the Republic of Vietnam.

Broncovet says here is the BOD again.  Remember, this is required by law.   Can you see 
the Colvin violation here?  The VA never mentioned the favorable evidence, only the unfavorable.  By not addressing the favorable evidence, VA committed this error.  They have to give a reason why the favorable evidence was not probative.  
 

Based on the above, at the time of the April 1982 RO rating decision, and pursuant to 38 C.F.R. § 3.303(a), the evidence was sufficient to at least place in equipoise the question of entitlement to direct service connection for atypical anxiety disorder based on VA treatment records indicating that the anxiety symptoms were related to service in the Republic of Vietnam, and the report from the March 1982 VA mental health examination in which the VA examiner's opinion supported the VA treatment record findings.  Further, the record reflects that there was no evidence of record at the time of the April 1982 rating decision indicating that the diagnosed atypical anxiety disorder was not related to service, including service in the Republic of Vietnam.  The evidence did not reflect any other possible cause of the atypical anxiety disorder outside of the Veteran's experiences in the Republic of Vietnam.


 

Broncovet says:  This is awesome.  See the "no evidence of record indicating the disorder was NOT related to service"?    I would like to have seen this occur at the CAVC level with multiple judges so that its precedential.  Still we can learn from it.  

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