Citation Nr: 0004283 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 97-34 089A ) DATE ) ) THE ISSUE Whether a December 1997 decision of the Board of Veterans' Appeals denying entitlement to service connection for schizophrenia should be revised or reversed on the grounds of clear and unmistakable error. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (the Board) on a motion by the moving party alleging clear and unmistakable error in a Board decision issued in December 1997. FINDINGS OF FACT 1. In a December 1997 decision, the Board denied entitlement to service connection for schizophrenia. 2. The report of the veteran's entrance examination in July 1986 shows a normal psychiatric evaluation; after approximately one month of service, he was discharged due to a psychiatric disorder. 3. Private medical evidence dated in January 1998 and in August 1991 shows that the veteran was treated for schizophrenia prior to service, with the first episode in December 1985, and hospitalization in April 1986. 4. The veteran's schizophrenia clearly and unmistakably preexisted service. CONCLUSION OF LAW The Board's December 1997 decision was not clearly and unmistakably erroneous for denying entitlement to service connection for schizophrenia. 38 U.S.C.A. § 7111 (West Supp. 1999); 38 C.F.R. §§ 20.1403(a) & (c), 20.1404(b) (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) (emphasis added). 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) (emphasis added). Examples of situations that are not clear and unmistakable include: (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). The motion must set forth clearly and specifically the alleged error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Id. (emphasis added). 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). On this point, it should be noted that Congress intended that VA adopt the Court's interpretation of the term "clear and unmistakable error." The notice of proposed rulemaking, 63 Fed. Reg. 27534, 27536 (1998), reflects that the sponsor of the bill that became the law specifically noted that the bill would "not alter the standard for evaluation of claims of [clear and unmistakable error]." 143 Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House passage). The Board may therefore rely on the well-established precedent of the Court on what exactly constitutes a valid claim of clear and unmistakable error, such as is set forth in Russell, Damrel, Fugo, all supra. In pleadings prepared by the moving party in April and October 1999, it was asserted that "the 1997 Board committed clear and unmistakable error because it failed to present clear and convincing evidence that a psychiatric disorder preexisted service." The moving party alleges that "[t]here is no clinical data to show that the appellant suffered from a mental condition prior to service, other than the service department findings" and that the Board in 1997 "did not successfully rebut the presumption of soundness by pointing to clinical evidence of treatment prior to military service." See Appellant's Brief, October 25, 1999. p. 2. In its December 1997 decision, the Board found that schizophrenia clearly and unmistakably existed prior to the veteran's active service. The Board observed that a psychiatric disorder was not noted at examination on entry into service in January 1987. In this case, as noted previously, the veteran's service medical records reflect that when he was examined for entry into service in July 1986, the psychiatric evaluation was reported to be normal. Thus, the presumption of soundness at entry must be considered. However, there is clear and unmistakable evidence of record that the condition existed prior to entry. That information includes reports by private psychiatrists, clearly reflects that the veteran had a psychiatric disability, diagnosed as schizophrenia, which existed prior to his entry into active military service. The veteran has also essentially conceded that the psychiatric condition preexisted service. Accordingly, the presumption of soundness at entry has been rebutted. [citation omitted]. Thus, the only remaining question for consideration is whether the preexisting psychiatric condition was aggravated during service. See Board decision, p. 6 (December 2, 1997). The Board concludes that its decision of December 1997 was not clearly and unmistakably erroneous. As stated by the Court and adopted in the regulations governing motions alleging clear and unmistakable error in prior Board decisions, for such error to exist, the error must be "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)); 38 C.F.R. §§ 20.1403(a) & (c), 20.1404(b) (1999). On this point, the Board must emphasize that the Court has consistently stressed the rigorous nature of the concept of clear and unmistakable. See Fugo, supra, 6 Vet. App. at 43, 44 ("[i]t must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error'" and, there is "presumption of validity to otherwise final decisions" and the "presumption is even stronger" when such cases are collaterally attacked on the basis of error) and Luallen v. Brown, 8 Vet. App. 92, 95 (1995) (a disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error). In this case, the Board finds that the moving party has failed to set forth persuasive reasons why the Board decision of December 1997 was clearly and unmistakably erroneous to the extent that, had the alleged errors not been committed, the outcome in the case would have been manifestly different. Fugo, 6 Vet. App. at 44. As detailed above, the Board denied the claim for entitlement to service connection for schizophrenia because there was clear and unmistakable evidence in the records that the condition existed prior to service, and there was no evidence of aggravation during service. The moving party argues that there was no clinical data to show the existence of a mental condition prior to service. However, the December 1997 decision identified private medical records which showed that the moving party had received treatment for a psychiatric disorder, as early as December 1985 and April 1986, both prior to his entry examination in July 1986. As there were medical reports of record clearly showing diagnosis and treatment for schizophrenia prior to the veteran's entry into active service in January 1997, the Board was not erroneous in finding that there was clear and unmistakable evidence that the acquired psychiatric disorder diagnosed in service preexisted service, thus rebutting the presumption of soundness at entry raised by the July 1986 entry examination report that did not note a psychiatric disorder. ORDER The motion alleging clear and unmistakable error in the Board's December 1997 decision is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals