Citation Nr: 0004695 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 97-32 574A ) DATE ) ) THE ISSUES 1. Whether a March 1993 decision of the Board of Veterans' Appeals (Board) denying service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), should be revised or reversed on the grounds of clear and unmistakable error (CUE). 2. Whether an October 1997 decision of the Board which found that no new and material evidence had been submitted to reopen a claim of service connection for PTSD should be revised or reversed on the grounds of CUE. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to March 1973. This matter comes before the Board based on a CUE motion as to the Board decision of October 28, 1997, which found that no new and material evidence had been submitted to reopen a claim of service connection for PTSD. At the time of the Board's denial of the veteran's motion for reconsideration in April 1998, the Board advised the veteran that it would also consider his motion as a request for revision of the Board's October 28, 1997, decision on the grounds of CUE. Thereafter, in a letter dated in March 1999, the Board informed the veteran that in view of the new regulations concerning CUE, the Board would not consider the motion for reconsideration as a CUE motion unless the veteran informed the Board in writing that he wished for the Board to do so. At this time, the Board observes that the record reflects that the Board received a letter from the veteran, the moving party, in May 1999, which specifically referred to the Board's correspondence of March 1999, and in which he specifically stated he wanted CUE review. Moreover, the moving party's representative presented additional argument in November 1999 in which it was contended that there was CUE in both the March 1993 Board decision and the October 1997 Board decision. FINDINGS OF FACT 1. The March 1993 Board decision which denied service connection for an acquired psychiatric disorder, to include PTSD, correctly applied existing statutes and/or regulations and was consistent with and supported by the evidence then of record. 2. The October 1997 Board decision which found that no new and material evidence had been submitted to reopen a claim of service connection for PTSD correctly applied existing statutes and/or regulations and was consistent with and supported by the evidence then of record. CONCLUSIONS OF LAW 1. The March 1993 Board decision did not contain CUE. 38 U.S.C.A. § 501(a), 7111 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1403 (1999). 2. The October 1997 Board decision did not contain CUE. 38 U.S.C.A. § 501(a), 7111 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1403 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background. The provisions of 38 C.F.R. § 20.1403, relates to what constitutes CUE and what does not, and provides as follows: (a) General. Clear and unmistakable error 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. 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. (b) Record to be reviewed.- (1) General. 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. (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. (c) Errors that constitute clear and unmistakable error. To warrant revision of a 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. (d) Examples of situations that are not clear and unmistakable error.- (1) 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 how the facts were weighed or evaluated. (e) Change in interpretation. 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. (Authority: 38 U.S.C.A. § 501(a), 7111). The Board further notes that with respect to the final provisions of the regulations pertaining to the adjudication of motions for revision or reversal of prior Board decisions on the grounds of CUE, the definition of CUE was based on prior rulings of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court"). More specifically, it was observed that Congress intended that the Department of Veterans Affairs (VA) adopt the Court's interpretation of the term "CUE." Indeed, as was discussed in the notice of proposed rulemaking (NPRM), 63 Fed. Reg. 27534, 27536 (1998), the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of CUE." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). Therefore, the Board is permitted to seek guidance as to the existence of CUE in prior Board decisions based on years of prior Court decisions regarding CUE, such as Fugo v. Brown, 6 Vet. App. 40 (1993). With respect to the decision of March 1993, the Board first observes that at the time of the decision, the Board made the following Conclusions of Law: A psychiatric disorder to include an adjustment disorder with mixed emotional features, schizophrenia, and major depression was not incurred in or aggravated by service, and there is no basis to presume incurrence of a psychosis within the initial post service year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1992). Post traumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1992). In March 1993, the Board found that the veteran's claim was well grounded pursuant to 38 U.S.C.A. § 5107(a) and Murphy v. Derwinski, 1 Vet. App. 78 (1990), but that the evidence of record did not establish a confirmed diagnosis of PTSD. The Board also summarized numerous medical records on file concerning the veteran's claim, and found, in essence, that there were various psychiatric diagnoses noted within the record starting in April 1985 with an adjustment disorder with mixed emotional features and alcoholism, schizophrenia, and major depression. However, there was no objective evidence of record to establish a relationship between the various diagnoses and the appellant's period of service. Further, the Board noted that PTSD was noted as an Axis I diagnosis during VA hospitalization from April 3, 1989 to May 1, 1989; but that the hospitalization summary did not provide any objective basis for that diagnosis, and it apparently was based upon the veteran's reported history. Although a private physician noted in November 1990, without objective testing, that the appellant met the criteria for a diagnosis of PTSD, a VA hospitalization report dated in October 1989 for the purpose of observation and evaluation, had noted that after psychological testing, there was no evidence to support a diagnosis of PTSD in the appellant. In the October 1997 decision, the Board found that new and material evidence had not been submitted to reopen a claim for service connection for PTSD. At that time, the Board noted that when it denied service connection for PTSD in March 1993, it did so because treatment for or a diagnosis of a psychiatric disorder was not shown in service or until 1985, and because while there were medical records contained in the claims folder reporting diagnoses of PTSD, they diagnosed it without an in-depth examination of the veteran, whereas in-depth reports of VA examination and hospitalization with observation and extensive psychological testing to determine whether his disability was in fact PTSD stated that he did not have PTSD. With respect to the additional evidence submitted to reopen the claim, the Board found that more VA medical records had been submitted which contained assessments, impressions, or diagnoses of PTSD. The Board found that evidence similar to this was previously of record, so these additional records were cumulative of evidence which was previously considered and thus they are neither new nor material. Furthermore, the Board stated that, as was the case before, the only additional records which contained diagnoses that were based on extensive psychological testing and in-depth inquiry as to the nature of the current psychiatric disability stated that the veteran's disability was inconsistent with PTSD. Analysis. In the November 1999 statement from the moving party's representative, it was contended that the March 1993 Board decision contained CUE in that it did not apply the basic principles of service connection to the facts of this case. Specifically, the decision made no mention of the regulation 38 C.F.R. § 3.303 and did not discuss this regulation when the case was evaluated. The Board acknowledges that 38 C.F.R. § 3.303 was not specifically cited in the March 1993 decision, and, thus, it is axiomatic that this regulation was not specifically addressed when the evidence of record was evaluated. However, the fact that this regulation was not specifically mentioned in the decision does not show, in and of itself, that the Board failed to apply the basic principles of service connection. In fact, a review of the decision shows that these basic principles were considered. As noted above, the Conclusions of Law cited to, among other things, 38 U.S.C.A. § 1110. This statutory provision controls basic entitlement for wartime disability compensation. As such, it contains the basic principles of service connection. The Board's citation to this statutory provision indicates that these basic principles were applied when the Board adjudicated the claim in March 1993. Consideration of the basic principles of service connection is also reflected by the fact that the Board made the initial determination that the claim was well grounded, and that the disability was neither incurred in nor aggravated by service. Furthermore, the provisions of 38 C.F.R. § 3.303(a) and (d) (1992) are reflected in the Board's findings that a psychiatric disorder, to include PTSD, was first diagnosed after discharge, and that a review of the post-service medical evidence did not warrant a grant of service connection for PTSD. As an additional matter, the Board notes that the representative did not point to any specific provision of 38 C.F.R. § 3.303 which was not applied in the March 1993 decision that, if applied, would have manifestly changed the outcome when this decision was made. See 38 C.F.R. § 20.1403(c). Non-specific allegations of failure to follow regulations are insufficient to satisfy this requirement under 38 C.F.R. § 20.1404(b). With respect to the October 1997 decision, it was contended in the November 1999 statement that there was CUE in that the decision was contrary to established law. Specifically, its application of a legal standard governing new and material evidence which had been held to exceed that found in 38 C.F.R. § 3.156 in the case of Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). In regard to this contention, the Board notes that Hodge was decided on September 16, 1998, and is therefore an interpretation of the law governing new and material evidence that did not exist at the time of the Board decision in October 1997. As was noted earlier, CUE 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). Consequently, since Hodge did not exist at the time of the October 1997 Board decision and the Board correctly applied the law as it existed prior to the holding of that case, the representative's contention is without merit, and can not serve as a basis for CUE. Additional contentions have been presented by the veteran, and through his representative, regarding the medical evidence considered by the Board at the time of both the March 1993 and October 1997, and that the evidence warranted a grant of service connection for PTSD. For example, the veteran has pointed to diagnoses of PTSD made at the Weems Mental Health Center and the VA Medical Center in Jackson, Mississippi, as supporting his claim. Additionally, the veteran disputed the validity of a January 1994 VA psychphysiological test noted by the Board in the October 1997 decision. In short, these contentions go to how the evidence was evaluated by the Board at the time of these decisions. As stated above, disagreement as to how the facts were weighed or evaluated has been specifically precluded as a basis for CUE in 38 C.F.R. § 20.1403(d)(3). The moving party points to no specific evidence that undebatably demonstrated his entitlement to service connection for PTSD, or that the claim should have been reopened on the basis of new and material evidence. As far as any other basis for CUE is concerned, the Board must emphasize that in a CUE motion, it is incumbent upon the moving party to set forth clearly and specifically the alleged CUE, and that non-specific allegations of failure to follow regulations or failure to give due process, or any other general non-specific allegations of error, are insufficient to satisfy this requirement under 38 C.F.R. § 20.1404(b). Moreover, motions which fail to comply with the requirements set forth in 38 C.F.R. § 20.1404(b), shall be denied. Consequently, in view of the fact that the moving party has failed to comply with 38 C.F.R. § 20.1404(b), and that no other allegation of CUE is supported by the record, the Board has no alternative but to deny the moving party's motion for CUE. ORDER The March 1993 Board decision did not contain CUE and the CUE motion is denied. The October 1997 Board decision did not contain CUE and the CUE motion is denied. Gary L. Gick Member, Board of Veterans' Appeals