Citation Nr: 0001781 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 97-32 586A ) DATE ) ) THE ISSUE Whether a June 1990 decision of the Board of Veterans' Appeals denying service connection for post-traumatic stress disorder (PTSD) should be revised or reversed on the grounds of clear and unmistakable error. (The issue of whether a March 1972 rating decision that denied service connection for a nervous disorder should be revised or reversed on the grounds of clear and unmistakable error, Docket Number 98-02 789, is the subject of a separate decision). REPRESENTATION Moving Party Represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (the Board) on a motion by the veteran received in April 1998 alleging clear and unmistakable error in a June 1990 Board decision. FINDINGS OF FACT 1. In June 1990, the Board denied entitlement to service connection for PTSD on the basis of non-verified stressors. 2. The evidence of record before the Board in June 1990 reflected numerous diagnoses of PTSD made by VA medical examiners and the veteran's treating clinical psychologist based on his combat experiences in Vietnam and there was of record a report from the U. S. Army and Joint Services Environmental Support Group that verified that at least three of his reported stressors (two members of his unit killed in action and enemy attacks on his base area locations). CONCLUSION OF LAW The Board's June 1990 decision was clearly and unmistakably erroneous for failing to grant service connection for PTSD. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. § 20.1403(a) & (c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A Board decision is subject to revision on the grounds of clear and unmistakable error and must be reversed or revised if evidence establishes such error. 38 U.S.C.A. § 7111(a) (West Supp. 1999). Review to determine whether clear and unmistakable error exists in a case may be instituted by the Board on its own motion, or upon request of a claimant at any time after the decision is made. 38 U.S.C.A. § 7111(c) and (d). A request for revision is to be submitted directly to the Board and decided by the Board on the merits, 38 U.S.C.A. § 7111(e), and a claim filed with the Secretary requesting such reversal or revision is to be considered a request to the Board, 38 U.S.C.A. § 7111(f). Motions for review of Board decisions on the grounds of clear and unmistakable error are adjudicated pursuant to regulations published by VA in January 1999. 38 C.F.R. §§ 20.1400-1411 (1999). According to the regulations, clear and unmistakable error 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. 38 C.F.R. § 20.1403(a). Generally, clear and unmistakable error is present when 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 ignored or incorrectly applied. Id. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when the decision was made. 38 C.F.R. § 20.1403(b). The regulations cited above further provide that 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. 38 C.F.R. § 20.1403(c). Examples of situations that are not clear and unmistakable include the following: (1) Changed diagnosis. A new 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 under 38 U.S.C.A. § 5107(a); and, (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). Moreover, 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). In addition to the above, a motion for clear and unmistakable error in a Board decision must satisfy specific pleading requirements, and if it does not, the motion must be denied. 38 C.F.R. § 20.1404(b). Non-specific allegations of failure to follow regulations, failure to give due process, and other general, non-specific allegations of error are examples of allegations that will not meet the pleading requirements necessary to file a motion for clear and unmistakable error in a Board decision. Id. It should be noted that the above-cited regulatory authority was published with the specific intent to codify the current requirements for a viable claim of clear and unmistakable error that the United States Court of Appeals for Veterans Claims (the Court) has defined for claims of clear and unmistakable error in rating decisions. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994). Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 (1994); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Crippen v. Brown, 9 Vet. App. 412 (1996) and Berger v. Brown, 10 Vet. App. 166 (1997). Initially, the Board notes that service connection for PTSD was granted by rating decision in April 1994 and assigned a 100 percent disability rating effective from November 8, 1991. Hence, the clear and unmistakable error motion challenging the Board's denial of service connection for PTSD in the June 1990 decision is, in effect, a motion seeking reversal of the Board's decision for purposes of entitlement to an earlier effective date for the grant of service connection for PTSD under 38 C.F.R. § 20.1406(a) (1999). The Board's decision of June 1990 denied entitlement to service connection for PTSD on the basis that a verified stressor had not been confirmed. Evidence reviewed by the Board at that time included the veteran's service medical and personnel records; VA mental hygiene clinic, psychological evaluation and medical opinion reports from the veteran's treating clinical psychologist, Robert W. Huwieler, Ph.D., dated in 1986-89; VA hospital reports dated in 1986-87, including the report of a period of inpatient observation and evaluation conducted in December 1987; and, the report of the U. S. Army & Joint Services Environmental Support Group (ESG) dated June 21, 1989. In reviewing the evidence then of record, the Board in its June 1990 decision set forth the following reasons and bases in support of its denial of the claim: In order to establish service connection for [PTSD], it must be shown that the veteran experienced sufficient inservice stressors to support a diagnosis of [PTSD], and it must be shown that he manifests sufficient symptomatology which meet the criteria for a diagnosis of [PTSD]. It has been contended that, in the instant case, sufficient inservice stressors to support this diagnosis have been demonstrated. The veteran has reported numerous stressors including being tortured as a prisoner of war, being wounded on two occasions, being on perimeter duty when his base was overrun, witnessing the deaths of numerous of his fellow servicemen and hundreds of enemy soldiers, being forced to call in artillery barrages on his own men, and seeing a Cambodian boy he befriended killed. None of these stressors, however, have been confirmed. Indeed the U. S. Army and Joint Services Environmental Support Group has reported that the veteran's units sustained only light casualties during the period he served with them. Intense combat, of the type described by the veteran, was not confirmed. Thus, while it is true that on several occasions he has been diagnosed as having [PTSD]; [sic] sufficient inservice stressors to relate this condition to service have not been demonstrated. The Board has considered the doctrine of reasonable doubt, but does not find a basis on which to allow this appeal. The above-cited service personnel records disclosed that the veteran served in the U. S. Army from August 1966 to August 1969, which included a one-year tour of duty in the Republic of Vietnam from September 1967 to September 1968. While in Vietnam, the veteran was first assigned to Battery C, 7th Battalion, 9th Artillery as a Cannoneer and Ammo Handler (from September 27, 1967 to April 24, 1968), and then to Battery B, 5th Battalion, 42nd Artillery as an Ammo Handler (from April 25, 1968 to September 29, 1968). In connection with his appeal to the Board, the veteran submitted a "Statement in Support of Claim," VA Form 21-4138, in January 1987 which detailed many stressor incidents he claimed occurred while he was assigned to these units in Vietnam; among these were his account of witnessing the deaths of two fellow servicemen that he specifically named (Sergeants [redacted] and [redacted]) during the time he was assigned to C Battery (September 1967 to April 1968) and his accounts of enemy attacks on his base area location while he was assigned to C Battery as well as B Battery (April 1968 to September 1968). While many of his claimed stressors were not verified, including his accounts of being a prisoner of war and suffering shell fragment wounds, the U. S. Army and Joint Services Environmental Support Group verified in its report of June 1989 that the aforementioned servicemen, [redacted] [redacted] and [redacted], were members of the veteran's unit (C Battery) when they were both killed in action on November 23, 1967, although the details of their deaths could not be further described by the unit history records obtained by U. S. Army and Joint Services Environmental Support Group. In addition, U. S. Army and Joint Services Environmental Support Group verified enemy attacks on the base area locations of the veteran's units (C Battery was attacked by enemy mortar fire on October 27, 1967 and B Battery was attacked by enemy soldiers in the Long Thanh area of III Corps on September 14 and 15, 1968). Although the Board essentially conceded the diagnosis of PTSD in its decision of June 1990, relying instead on non-verified stressors to deny the claim, the above-cited medical evidence included no less than sixteen medical report entries showing a diagnosis of PTSD based on the veteran's Vietnam combat experiences. The first record diagnosis of PTSD was made in an October 1986 VA psychological testing report by the veteran's treating mental health care professional, Dr. Huwieler, a VA clinical psychologist. The record before the Board in June 1990 also showed that a majority of these diagnoses were made by the aforementioned Dr. Huwieler over the course of three years (1986-1989) of treatment which included extensive outpatient therapy and clinical- psychological testing. In addition to Dr. Huwieler, diagnoses of PTSD were made by K. L. Koehn, M.D., following a period of VA hospitalization in November-December 1986; by J. K. Day, M.D., following a period of VA hospitalization in December 1986-January 1987; and by A. Bratton, M.D., Dr. Huwieler's boss and Chief of Mental Hygiene Clinic, who stated his agreement with the diagnosis of PTSD in a report authored by Dr. Huwieler that was prepared in response to the report of a period of VA inpatient observation and evaluation (O & E) in December 1987 that determined that the veteran had a mixed personality disorder versus PTSD. Dr. Huwieler in particular provided extensive and detailed psychological assessments of the veteran's PTSD and stated on many occasions that the veteran displayed classic PTSD symptomatology. Medical evidence that did not reflect a diagnosis of PTSD from 1986 forward consisted only of four medical records: two VA hospital reports showing admissions in September 1986 and November 1986, a report of outpatient O & E conducted in June 1987, and the above-cited inpatient O & E report dated in December 1987. All of these reports diagnosed the veteran's condition as a mixed personality disorder with histrionic features. Applicable regulations in effect when the Board issued its decision in June 1990 did not provide specific criteria to establish entitlement to service connection for PTSD. Instead, the general provisions governing claims for service connection based on wartime service under title 38, United States Code and title 38 Code of Federal Regulations, which are substantively unchanged from that time, were for application. However, and although not cited in the Board's June 1990 decision, applicable regulatory provisions under Part 4 of 38 C.F.R. set forth "general considerations" for evaluating mental disorders, and in this regard, provided that a diagnosis of a mental disorder was to be based on the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III). See 38 C.F.R. § 4.125 (1989). The psychiatric nomenclature for PTSD based on DSM-III criteria was not set out in the regulations when the Board issued its decision in June 1990, however, applicable provisions of the VA Adjudication Manual, M21-1, Part III, Section 50.45, were in effect at that time and these provisions essentially restated the criteria to establish a diagnosis of PTSD under DSM-III criteria. Although the Board was not legally bound to apply these manual provisions, section 50.45 of the M21-1 indicated that service connection for PTSD required a clear diagnosis of the disorder based a detailed history of the stressful event or events thought to cause it and a full description of the past and present related symptoms, together with a link between current symptoms and a verified inservice stressor. Section 50.45 further indicated that any evidence available from the service department showing that the veteran served in the area in which the stressful event allegedly occurred and any evidence supporting the description of the event would constitute "reasonably supportive" evidence to show that the claimed inservice stressor actually occurred. As these provisions essentially restated the criteria to establish a diagnosis of PTSD under the DSM-III, the Board in June 1990 was required to apply the spirit, if not the letter, of these provisions under the auspices of 38 C.F.R. § 4.125, as detailed above. In view of the above, the Board concludes that clear and unmistakable error was committed by the Board in the June 1990 decision on the grounds that it failed to grant service connection for PTSD where the evidence then of record showed a clear diagnosis of PTSD under DSM-III criteria based on the veteran's Vietnam combat experiences, and where there was reasonably supportive evidence to verify that at least three of the veteran's claimed inservice stressors actually occurred. First of all, the medical evidence before the Board in June 1990 clearly showed by a substantial preponderance of relevant and probative evidence, particularly, the medical reports and opinions of Dr. Huwieler, that the veteran had PTSD based on his Vietnam combat experiences. Second, the veteran's service records clearly showed that he was in combat in Vietnam based on his duty locations and assignments, notwithstanding the fact that it was not proved that he was ever a prisoner of war or was wounded in combat. Thirdly, and most importantly, the record before the Board in June 1990 clearly and unequivocally showed that at least three of his claimed inservice stressors occurred and therefore, these stressors were verified. On this point, the Board in June 1990 completely missed the mark when it stated that none of his stressors were confirmed. Accordingly, given the state of the record, the Board concludes that this finding of non-verified stressors was clearly and unmistakably erroneous because under the applicable legal authority then in effect, as detailed above, the veteran had established that he had PTSD under DSM-III criteria, to include verification that some of his related Vietnam combat stressors actually occurred. With these facts for consideration, the Board concludes that had the error not been made, it is clear that the end-result would therefore have been manifestly different, i.e., entitlement to service connection for PTSD would have been warranted. ORDER The veteran's motion alleging clear and unmistakable error is granted to the extent that the Board's June 1990 decision is reversed as to its denial of service connection for PTSD, and the RO is directed to assign a new effective date for the grant of service connection for PTSD in accordance with 38 C.F.R. § 20.1406(a) (1999). A. BRYANT Member, Board of Veterans' Appeals