Citation Nr: 0003182 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-08 832A ) DATE ) ) THE ISSUE Whether a January 1993 decision of the Board of Veterans' Appeals denying service connection for post-traumatic stress disorder should be revised or reversed on the grounds of clear and unmistakable error. (The issues of entitlement to service connection for disabilities resulting from Agent Orange exposure during service, an evaluation in excess of 30 percent for post- traumatic stress disorder and an earlier effective date for the grant of service connection for post-traumatic stress disorder are the subject of a separate decision.) REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from March 1968 to May 1970. In a January 1991 rating action, the Department of Veterans Affairs (VA) Regional Office (RO) St. Paul, Minnesota, denied entitlement to service connection for post- traumatic stress disorder. The veteran appealed from that decision. In a decision dated in January 1993, the Board of Veterans' Appeals (Board) affirmed the denial of service connection for post-traumatic stress disorder. In February 1996 the veteran reopened his claim for service connection for post-traumatic stress disorder. In a November 1996 rating action the regional office granted service connection for post-traumatic stress disorder and assigned a 30 percent evaluation for the condition effective in February 1996. The regional office also denied service connection for disabilities based on Agent Orange exposure in service. The veteran appealed from the denial of service connection for disabilities based on Agent Orange exposure and also from the evaluation assigned for the post-traumatic stress disorder. He also appealed for an earlier effective date for the grant of service connection for post-traumatic stress disorder. In correspondence of May 1998 and subsequently the veteran has asserted that the January 1993 Board decision involved clear and unmistakable error and should be reversed. This case is currently before the Board to consider that question. The appellate issues of entitlement to service connection for disabilities based on exposure to Agent Orange in service, an evaluation in excess of 30 percent for post-traumatic stress disorder and entitlement to an earlier effective date for a grant of service connection for post-traumatic stress disorder are the subject of a separate decision. FINDINGS OF FACT 1. By rating action dated in January 1991, the regional office denied entitlement to service connection for post- traumatic stress disorder. The veteran appealed from that decision. 2. In January 1993 the Board of Veterans' Appeals affirmed the denial of entitlement to service connection for post- traumatic stress disorder. 3. In May 1998 the veteran asserted that the January 1993 Board decision involved clear and unmistakable error and should be reversed. 4. The January 1993 Board decision did not involve an error which, had it not been made, would have manifestly changed the outcome of that decision. CONCLUSION OF LAW The January 1993 Board decision denying entitlement to service connection for post-traumatic stress disorder did not involve clear and unmistakable error. 38 U.S.C.A. §§ 5107, 7111 (West 1991); 38 C.F.R. §§ 20.1400, 1403 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Following the January 1993 decision by the Board, the veteran reopened his claim for service connection for post-traumatic stress disorder in February 1996. In a November 1996 rating action the regional office granted service connection for that condition effective from the date of receipt of his claim in February 1996. In correspondence beginning in May 1998, the veteran and his representative have asserted that the January 1993 Board decision involved clear and unmistakable error and should be reversed. It is maintained that although the Board concluded that there was no diagnosis of post-traumatic stress disorder, that conclusion was a medical conclusion which the Board was unable to substantiate. At the time of the Board decision, a treatment plan for the veteran dated in November 1990 with diagnostic impressions of alcohol dependence and major depression with the need to rule out post-traumatic stress disorder and an organic personality disorder was of record. In a letter dated in April 1992, the veteran's treating psychologist stated that the veteran had suffered a psychological disorder as a result of traumatic events that occurred in Vietnam. Only one VA physician stated that the veteran did not meet the criteria required for a diagnosis of post-traumatic stress disorder. Based on this evidence it has been argued that the Board's conclusion that the veteran did not have post-traumatic stress disorder was a medical conclusion and not a conclusion of law. It is maintained that the Board should have remanded the case to the regional office to afford the veteran a thorough VA examination and the examination should have been completed with access to the veteran's claims file. The evidence of record at the time of the January 1993 Board decision included the veteran's service medical records which do not reflect the presence of a psychiatric disability. The veteran's personnel records reflect that he served in the Republic of Vietnam from September 1968 to June 1999. His military assignments included door-gunner on a helicopter. His decorations included the Air Medal, the Vietnam Service Medal and the Vietnam Campaign Ribbon. The veteran's initial claim for service connection for post- traumatic stress disorder was submitted in July 1990. In October 1990, he submitted a statement relating various traumatic events that reportedly occurred in Vietnam. He indicated that he had witnessed the deaths of some of his own men and of enemy soldiers. He also reported that he had killed several individuals as a door-gunner. He related that all of the door-gunners were under much stress and pressure and were frightened of being killed and not going home. The veteran also submitted records of treatment received from 1988 to 1990 while incarcerated in a State correctional facility. Reference was made in the records to depression, anxiety and post-traumatic stress disorder. There was also received a portion of a psychological test conducted in October 1990. The veteran was afforded a VA psychiatric examination in January 1991. He described various traumatic events that reportedly occurred in Vietnam including being engaged in a fire-fight, assisting wounded soldiers and placing deceased soldiers in body-bags. He claimed that increasing his use of alcohol and marijuana seemed to alleviate the pain and stress of war. He also claimed that he had had no alcohol or drug problems prior to going to Vietnam. Intrusive memories from Vietnam bothered him in his nightmares. After service he had had many jobs, mostly in construction and as an automobile mechanic and had never held a job for more than nine months. He had social and legal problems including passing bad checks, burglaries, bar fights, disorderly conduct and driving while intoxicated. He had also been charged with sexual misconduct and in 1988 had been sentenced to several years in a reformatory. He had been married twice and both marriages had ended in divorce. Although he claimed that the nightmares bothered him, he did not indicate that he had any flashbacks about his war experiences and did not feel hypervigilant or depressed. He had also seen many television shows regarding Vietnam. On mental status examination, the veteran was verbal, flee- flowing and goal-directed. His affect was appropriate with a normal range. He was oriented in all three spheres. His memory for recent events was grossly intact. His concentration span was good. His general fund of information was good. It was indicated that he read papers and viewed many television shows regarding Vietnam. His formal judgment was fragmented. There was no evidence of a psychosis or perceptual aberration. He planned to go to a halfway house after completing his sentence. The diagnoses were antisocial personality disorder and alcohol dependence, currently in remission. The examiner stated that the veteran currently did not qualify for a diagnosis of post-traumatic stress disorder secondary to Vietnam although he claimed some symptoms referable to it. The veteran later submitted a copy of an attending physician's statement dated in March 1989 conducted in connection with the Agent Orange Veteran Payment Program. The diagnoses were post-traumatic stress disorder and chemical dependency. A master treatment plan of a VA psychologist dated in November 1990 with diagnostic impressions of alcohol dependence and major depression was also submitted. The plan stated that post-traumatic stress disorder and organic personality syndrome should be ruled out. An April 1992 statement from a VA psychologist to the veteran in which he indicated that as his therapist, he did not see him as a dangerous person but as an individual who came out of a dysfunctional family and then was traumatized by combat experiences in Vietnam was also of record. Subsequent to the January 1993 Board decision and following the veteran's reopened claim in February 1996 he was afforded a VA psychiatric examination in August 1996 and various findings were recorded. The diagnoses included post- traumatic stress disorder, alcohol and drug abuse and depressive disorder. As noted previously, in November 1996, the regional office granted service connection for post-traumatic stress disorder effective from the date of receipt of the reopened claim in February 1996. The regional office later received additional information including a copy of the March 1989 attending physician's statement and a psychological evaluation of the veteran conducted in September 1990. A copy of a report by the State department of corrections dated in January 1992 reflecting impressions of an adjustment disorder with mixed emotional features, history of major depression and post-traumatic stress disorder was also received. Additional records of the department of corrections dated in March 1997 reflect diagnoses of post-traumatic stress disorder by history, alcohol abuse in remission and a personality disorder. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Service connection may 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). A decision by the Board of Veterans' Appeals is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C.A. § 7111. Review to determine whether clear and unmistakable error exists in a final Board decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 C.F.R. § 20.1400(a). Clear and unmistakable error is 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b). To warrant revision of any Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c). Examples of situations that are not clear and unmistakable error are (1) a changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to the how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). The Court propounded a three-pronged test to determine whether clear and unmistakable error is present is a prior determination: (1) "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," (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. Damrel v. Brown, 6 Vet.App. 242, 245 (1994), (quoting Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)). The Board notes also that in the case of Fugo v. Brown, 6 Vet.App. 40 (1993) the United States Court of Appeals for Veterans Claims defined "clear and unmistakable error" as that kind of error of fact or law that when called to the attention of later reviewers compelled the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. In this case, as noted previously, the evidence of record at the time of the January 1993 Board decision included the veteran's service medical records which did not reflect the presence of a psychiatric disability. In connection with the veteran's July 1990 claim for service connection for post- traumatic stress disorder, the regional office received medical records from a State correctional facility, indicating a history of substance abuse and treatment for depression, anxiety and post-traumatic stress disorder. There was also received an attending physician statement dated in March 1989 in which the diagnoses included post- traumatic stress disorder. However, the veteran was afforded a VA psychiatric examination in January 1991 and diagnoses were made of an antisocial personality disorder and alcohol dependence, currently in remission. The examiner stated that the veteran did not qualify for a diagnosis of post-traumatic stress disorder secondary to Vietnam although he claimed some symptoms referable to it. There was also of record an April 1992 statement by a VA psychologist to the veteran indicating that as his therapist, he did not see the veteran as a dangerous person but as an individual who came out of a dysfunctional family and then was traumatized by combat experiences in Vietnam. The Board noted in its January 1993 decision that if it was assumed that the comments by the VA psychologist in his April 1992 statement amounted to a diagnosis of post-traumatic stress disorder, there were no clinical records of treatment to support such a diagnosis. It was further indicated that such generalities were insufficient to outweigh the assessment of the VA psychiatrist in January 1991 that a diagnosis of post-traumatic stress disorder referable to service in Vietnam was inappropriate. The Board accordingly found that post-traumatic stress disorder had not been shown to be present at the time of the veteran's latest examination and denied entitlement to service connection for such a condition. On the basis of the record that existed when the January 1993 Board decision was made, the Board is unable to conclude that that decision involved clear and unmistakable error. As noted previously, there were medical records from a State correctional facility dated from 1988 to 1990 reflecting references to post-traumatic stress disorder and an attending physician's report dated in March 1989 reflecting diagnoses including post-traumatic stress disorder. However, the presence of that condition was not confirmed on the January 1991 VA psychiatric examination. Although a subsequent VA psychiatric examination conducted in 1996 reflected a diagnosis of post-traumatic stress disorder and service connection was eventually granted for that condition, the diagnosis of post-traumatic stress disorder made on the 1996 VA examination would not serve to establish clear and unmistakable error in the January 1993 Board decision. Further, although additional development including another VA psychiatric examination might have been warranted at the time of the January 1993 Board decision, the fact that further development was not undertaken would not constitute a basis for a finding of clear and unmistakable error. The Board does not find an error in the Board's adjudication of the appeal in January 1993 which, had it not been made, would have manifestly changed the outcome when it was made. Accordingly, under the circumstances, as indicated previously, the Board concludes that the January 1993 Board decision did not involve clear and unmistakable error and is a final decision. That decision accordingly may not be reversed or revised. 38 U.S.C.A. § 7111. ORDER The January 1993 decision of the Board of Veterans' Appeals denying service connection for post-traumatic stress disorder did not involve clear and unmistakable error. The appeal is denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals