Citation Nr: 0005118 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-13 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether the August 19, 1968 rating decision wherein the RO denied service connection for asthma constituted clear and unmistakable error (CUE). 2. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD). 3. Entitlement to a total disability rating for compensation purposes on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active military service from May 1966 to May 1968. The current appeal arose from August 1996, March 1997 and December 1997 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. In August 1996 the RO denied entitlement to service connection for PTSD, and a TDIU. In March 1997 the RO granted entitlement to service connection for PTSD with assignment of a 30 percent evaluation effective from May 1, 1996, and affirmed the denial of entitlement to a TDIU. In December 1997 the RO determined that the August 19, 1968 rating decision wherein it denied entitlement to service connection for asthma did not constitute CUE. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. The issues of entitlement to an initial rating in excess of 30 percent for PTSD and a TDIU rating are addressed in the portion of this decision. FINDINGS OF FACT 1. The August 19, 1968 rating decision wherein the RO denied entitlement to service connection for asthma was not appealed by the veteran. 2. The rating decision of August 19, 1968 did not contain any 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. CONCLUSION OF LAW The August 19, 1968, rating decision wherein the RO denied entitlement to service connection for asthma did not constitute CUE. 38 U.S.C.A. § 4005, in effect on August 19, 1968; 38 C.F.R. § 3.105(a) (1968). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The record shows that the veteran filed an application for VA compensation at separation from service in May 1968. In the application he referred to "Asthma-Feb. 1968" and stated that he had recurrent trouble. The RO requested and obtained the veteran's service medical records. In May 1967 he was evaluated for complaints of dizziness and also reported that he had "a little touch of asthma" for the previous two to three weeks. A physical examination was reported as negative and he was returned to full duty with no limitations. On the medical examination in March 1968 for separation he gave a history of asthma, shortness of breath, chest pain and chronic cough for which there was no elaboration. There was no reference to asthma on the medical examination either in the clinical evaluation or in the summary of defects and diagnoses. The basis for the noted abnormal lungs and chest was not indicated. On the VA examination in July 1968 the veteran in reporting his present complaint mentioned that he had "some asthma". He received a chest x-ray and a pulmonary function test in the examination of the respiratory system. The examiner reported that the chest had equal expansion, normal resonance, no rales or rhonchi, and no cough or expectoration. The veteran said that he would "choke up at night sometimes" and would have to take a "Primatine tablet to get any relief". The diagnosis included bronchial asthma, by history. The RO reviewed this evidence when it issued a rating decision on August 19, 1968 wherein it denied service connection for asthma. In the rating decision the RO noted that asthma was claimed by the veteran but not shown by the evidence of record. The RO granted service connection for other disabilities with a combined rating of 20 percent. The claims file includes a VA Form 20-822, "CONTROL DOCUMENT AND AWARD LETTER," dated August 28, 1968, mailed to the veteran at his address of record, that indicated a combined rating of 20 percent. On the form there was a reference to VA Form 21-6782, "ORIGINAL DISABILITY COMPENSATION". There was a VA Form 21-6798 "DISABILITY AWARD" in the claims file dated August 20, 1968 that referred to the August 1968 rating decision and included information that corresponded to that reported on the VA Form 20-822. It was checked on the disability award form that a Form 21-6782 was an attachment with the VA Form 20-822. Additional handwritten information included the disabilities for which service connection was granted and the assigned ratings. It was also noted that service connection for asthma was denied on the basis that it was "not shown by evidence of record". The next communication from the veteran was a letter received in early April 1969 wherein he stated that the award he received was incorrect for the "service connected conditions" and that he had "come across" some material that would justify a "redecision" on his service connected disability. The RO in early April 1969 mailed a letter to the veteran at the address provided in his recent correspondence. The RO asked him to furnish the evidence he believed had a bearing on his case or state the nature of the evidence. He was advised to submit the additional evidence promptly. The record shows the next contact with the veteran was in June 1973 when he was given a routine examination for his service-connected disabilities. Criteria Initially, the Board notes that the veteran did not appeal the August 19, 1968 rating decision and that the decision is final. 38 U.S.C.A. § 4005; 38 C.F.R. § 3.105(a); effective January 1, 1963. The Board notes that under 38 C.F.R. §§ 3.104(a) and 3.105(a) (1999), taken together, a rating action is final and binding in the absence of clear and unmistakable error. A decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). VA regulations provide that "previous determinations which are final and binding...will be accepted as correct in the absence of clear and unmistakable error." 38 C.F.R. § 3.105(a). Where evidence establishes such error, the prior decision will be reversed or amended. Id. "Clear and unmistakable error" requires more than a disagreement on how the facts are weighed or evaluated; the appellant must show that the correct facts, as they were known at the time, were not before the adjudicator or that pertinent regulatory or statutory provisions were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). In addition, "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. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A claim that the evidence was not properly weighed or evaluated cannot constitute clear and unmistakable error, and the allegation of clear and unmistakable error must specifically state what error and how the outcome would have been manifestly different. Id. at 44. The determination regarding clear and unmistakable error must be made based on the record and the law that existed at the time the decision was made. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 314. Evidence that was not of record at the time of the decision cannot be used to determine if clear and unmistakable error occurred. Porter v. Brown, 5 Vet. App. 233 (1993). Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For purposes of determining whether clear and unmistakable error 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 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 (1994). "Notice" means written notice sent to a claimant or payee at his latest address of record. 38 C.F.R. § 3.1(q) (1968). The claimant will be notified of any decision authorizing the payment of benefit or disallowance of a claim. Notice will include the reason for the decision, the claimant's right to initiate an appeal by filing a notice of disagreement and the time limits within which such notice may be filed. 38 C.F.R. § 3.103 (1968), in accord 38 C.F.R. § 19.109 (1968). A written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction will constitute a notice of disagreement. The notice should be in terms which can be reasonably construed as evidencing a desire for review of that determination. It need not be couched in specific language. Specific allegations of error of fact or law are not required. 38 C.F.R. § 19.113 (1968). A statement of the case shall consist of a summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed, a citation or discussion of pertinent law, Veterans Administration regulations or other criteria and he decision on the issue or issues and the reasons for the determination. 38 C.F.R. § 19.115 (1968). Analysis The veteran's attorney has made extensive argument on the matter of CUE. He argues that the veteran did not receive a copy of the decision with notice of appeal rights at that time and that any assertion to the contrary is not true. The attorney asserts that the veteran filed a notice of disagreement in April 1969 but was never issued a statement of the case. It is argued that CUE was committed by the rating board in failing to acknowledge asthma was revealed on the separation examination and that the VA examiner provided a diagnosis of bronchial asthma. In summary, on one hand the argument is that the August 1968 rating decision never became final. Alternatively, it is argued that CUE was committed when the asthma in service and VA medical diagnosis of bronchial asthma was ignored. The veteran's recollections regarding the existence of asthma in service and the August 1968 VA rating decision are essentially in accord with the written argument (transcript at 2-4). The Board observes that CUE would not be an issue if the August 1968 rating decision did not become final. They are different theories although the veteran's attorney has discussed them together in the context of CUE. The contention that the veteran was not aware of the decision made regarding asthma or of his appeal rights is outweighed by the contemporaneous administrative record. There is simply no evidence to indicate that VA did not advise him of this as claimed. In the Board's opinion, the record includes substantial evidence to confirm that VA in 1968 advised the veteran of the adverse decision in a form letter that explained his compensation entitlement and appeal rights. The claims file included a worksheet for the original disability compensation form letter that noted the denial of service connection for asthma. The version of the VA Form 21-6782 used at that time advised the claimant of appellate rights and the disabilities for which service connection was established and those not service-connected. Although the form may have included information not applicable to him at the time, the numbered form clearly provided notice of benefits denied and appeal rights. The veteran's address of record appears on all the pertinent forms. The Board would point out that the procedure at the time did not require the claimant receive a copy of the rating decision. Notice was to be in writing and sent to the claimant at the latest address of record. 38 C.F.R. § 3.1(q). The appeal notice in the VA form letter reflected the information required under the applicable regulations then in effect. 38 C.F.R. §§ 3.103, 19.109. Unfortunately, from a review of the claims folder there appears to be no plausible basis to find that the veteran was not advised of the decision regarding asthma or his right to appeal it in 1968. In view of the contemporaneous VA correspondence, it does not appear that his argument regarding due process in VA's duty to inform or assist can be sustained. The veteran's argument that VA did not advise him is unsustainable from the record. He has not argued that he was misled through award letters and administrative due process appears to have been provided. To resolve situations such as this one in which administrative error on the part of VA is asserted, the case law has defined a presumption of regularity to the effect that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties". Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the RO level, such as in the instant case. The Court specifically held that a statement of the appellant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. The presumption of regularity thus dictates that in the normal course of business, the RO would have provided the veteran a summary of his compensation entitlement and appeal rights when entitlement was initially established. In this case his initial compensation entitlement was established in 1968. There is nothing contained in the record to indicate that anything unusual happened as to the location of the record which would have prevented the RO from following its usual procedures. Indeed, the record appears to confirm that the usual procedures were followed. Correspondence shows sparse communication between the veteran and VA from 1968 to 1973 regarding benefit matters. As explained above, the veteran's testimony does not constitute clear evidence to the contrary sufficient to rebut the presumption of regularity. There is also more direct evidence of notice in the veteran's April 1969 letter to the RO as therein he discussed the service-connected disability award and clearly appeared to be seeking a higher rating. However, it is argued that the letter was a valid notice of disagreement with the denial of service connection for asthma. At the time, he had service- connected disabilities rated 20 percent. The notice of appeal rights in the VA Form 21-6782 advised him that he should specify the part of the decision with which he disagreed. If the Board were to assume this letter was a notice of disagreement, his comments were not directed to asthma and the letter did not give any indication of disagreement with the August 1968 rating determination regarding asthma. At that time, a statement of the case would include evidence, applicable law and regulations pertinent to the issue or issues with which disagreement was expressed. 38 C.F.R. §§ 19.113, 19.115 (emphasis added). Therefore the instructions regarding appeal procedures in the VA form letter appear in accord with the guidelines to initiate an appeal at that time as reflected in the Board appellate rules. The Board does not intend, nor is it obligated, to speculate concerning the veteran's intentions regarding his service- connected disability evaluation at that time. However, the Board having reviewed the record in light of the applicable law and regulations is left with the belief that he did not initiate an appeal of the August 1968 denial of service connection for asthma. With respect to the claim of clear and unmistakable error in the RO's failure to accept evidence as establishing asthma, the Board must point out the appellant in essence appears to be disagreeing with the way the RO weighed and evaluated the evidence. Disagreement with the way the facts were weighed and evaluated is not a claim of clear and unmistakable error. Russell, 3 Vet. App. at 313. The Board has not been advised of other contemporaneous records that referred to asthma. However, the constructive receipt rule established in Bell v. Derwinski, 2 Vet. App. 611 (1992) would have no application to this case since the rating decision at issue was prior to the date the Bell decision was issued, July 21, 1992. See, for example, Damrel, 6 Vet. App. at 246; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Further, any failing to develop for non VA evidence in the late 1960's, if suggested by information in contemporaneous VA medical reports or other correspondence, would have been a breech of the duty to assist, and as such it cannot be a basis for a CUE claim, although the record may have been incomplete. Caffrey v. Brown, 6 Vet. App. 377 (1994). The argument appears to assume facts not in evidence. The service medical records included the veteran's self reported asthma that was not confirmed on examination in 1967 and it was not medically confirmed on the separation examination. The VA examiner noted bronchial asthma by history on the basis of a negative physical examination. Neither the service medical records nor contemporaneous VA examination showed a diagnosis of asthma established by examination, the argument to the contrary simply refuses to recognize what should be obvious. There is simply no undebatable evidence that chronic asthma existed. The RO does appear to have reviewed the medical records brought to its attention when it decided the claim in 1968. The most that can be said from the record available at the time is that the veteran had isolated respiratory symptoms described by him as asthma. The evidence available to the RO in 1968 did not compel the conclusion that he had chronic asthma of service inception. The Board must conclude that the veteran has not articulated a plausible argument based on a failure to apply the law or misapplication of the law to his case in light of the contemporaneous evidence. That is, he has offered no compelling undebatable evidence that his statements alone were determinative of the existence of a disability under the VA adjudication criteria then in effect. See Fugo v. Brown, 6 Vet. App 40, 43-44 (1993). Disagreement with the way the evidence was evaluated is not a claim of CUE. Therefore, the Board must find that the rating decision of August 1968 was in accord with acceptable rating judgment. Although the 1968 rating decision may not have been as explanatory as it could have been, clearly, it was not shown that the evidence compelled service connection as claimed. See Bierman v. Brown, 6 Vet. App. 125, 131 (1994); Suttmann v. Brown, 5 Vet. App. 127, 133-34 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The record simply does not support an argument that undebatable error was committed. The weight and probative value given to a particular examination report or treatment record involves judgment. Accordingly, the Board finds that the August 1968 rating decision did not contain any 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 regarding the claim of service connection for asthma would have been manifestly different but for the error. See also Baldwin v. West, 13 Vet. App. 1 (1999). The Board has noted the representative's reference to a well grounded claim in the context of the CUE argument. However, it should be borne in mind that this provision was added in 1988 and the concept is not applicable to a claim of CUE many years earlier. 38 U.S.C.A § 5107(a) added by Pub.L. 100-687; Nov. 18, 1988. ORDER The August 19, 1968 rating decision wherein the RO denied entitlement to service connection for asthma not having constituted CUE, the appeal is denied. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. The Board has noted the representative's recent arguments regarding the adequacy of the recent VA evaluation of the veteran's PTSD. Since the last VA examination in early 1997 there has been a private examination that commented on the veteran's employability on account of PTSD. The veteran testified regarding his VA treatment history and it appears that other relevant records are outstanding and likely available. The Board is unable to justify rating the disability on the basis of an incomplete evaluation, although the psychiatric assessment appears to have been comprehensive. This issue is intertwined with the TDIU claim since both ratings provide a total schedular evaluation. As for the veteran's entitlement to a TDIU, the record now reflects a combined 50 percent rating for all service- connected disabilities. The veteran has been in receipt of Social Security Administration (SSA) disability benefits for many several years. The claim for a TDIU must be fully developed as discussed in Friscia v. Brown, 7 Vet. App. 294, 297 (1994); Vettese v. Brown, 7 Vet. App. 31, 35 (1994). The record shows that the veteran applied for VA vocational rehabilitation assistance in late 1995 and had also established such contact in 1987. He apparently had a VA case manager in early 1996. The extent of his vocational rehabilitation assistance is not documented in the record. VA is on notice of the existence of SSA records and the complete record reviewed by the SSA is necessary for an informed determination of this appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The information on file from SSA shows that vocational and functional capacity assessments were completed. This would be significant evidence and necessary for an informed determination of whether the veteran is not unemployable on account of service-connected disabilities. The relevance of SSA records to the TDIU issue under consideration justifies the expenditure of additional adjudication resources. Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). VA has a duty to assist the veteran in the development of facts pertinent to his well-grounded claim for increase compensation for PTSD which is intertwined with the TDIU claim, which is an extension of the increased rating claim. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The Court has held that the duty to assist a veteran includes conducting a thorough medical examination so that the evaluation of a claimed disability will be a fully informed one. Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). Under the aforementioned circumstances, the Board finds it necessary that the case be remanded to the RO for the following actions: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who may have additional records of his treatment for PTSD and other service connected disabilities. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified by the veteran whose records have not previously been obtained. Regardless of the veteran's response, the RO should secure all outstanding VA treatment records. 3. The RO should contact SSA and ask that it provide a complete record of exhibits reviewed in connection with the adjudication of the claim in 1997. This should include all disability- related development and documentation as well as the medical records relied upon concerning the claim. If records pertaining to such claim and medical evidence utilized in processing such claim are not available, that fact should be entered in the claims file. 4. The RO should arrange for a VA examination of the veteran by a psychiatrist to determine the current nature and extent of severity of PTSD. Any indicated special studies should be conducted. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of their examination and the examiner must annotate the examination report in this regard. The examiner should identify all of the veteran's associated symptomatology in order to determine the impairment caused by PTSD. If there are other psychiatric disorders found, in addition to PTSD, the examiner should specify which symptoms are associated with each disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, it should be so indicated. If a psychiatric disorder(s) other than PTSD is or are found on examination, the examiner should offer an opinion as to whether any such disorder is causally or etiologically related to PTSD, and, if not so related, whether PTSD has any effect on the severity of any other psychiatric disorder. During the course of the examination, the examiner should identify all of the symptoms or manifestation of PTSD Following evaluation, the examiner should provide a numerical score on the Global Assessment of Functioning (GAF) Scale provided in the Diagnostic and Statistical Manual for Mental Disorders, in relation to the veteran's impairment from PTSD. The examiner must include a definition of the numerical GAF score assigned, as it relates to the veteran's occupational and social impairment. If the historical diagnosis of PTSD is changed following evaluation, the examiner should state whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. The examiner must specially express an opinion as to whether PTSD has rendered the veteran unable to work or unemployable. Any opinions expressed by the examiner must be accomplished by a complete rationale. 5. The RO should arrange for a VA orthopedic examination by an orthopedic surgeon or other appropriate specialist for the purpose of ascertaining the severity of the veteran's service-connected shell fragment wound to the right thigh with muscle damage (Group XIII); gunshot wound of the right arm (Muscle Group V); and multiple scar of the right wrist, right posterior chest, right ankle, and bilateral buttocks. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination, and the examiner must annotate the examination report in this regard. The examiner should carefully elicit all of the veteran's subjective complaints and should offer opinions as to whether there is adequate pathology present to support the level of each of the veteran's subjective complaints. Any opinions expressed must be accompanied by a complete rationale. The examiner should identify all of the veteran's symptoms or manifestations and offer an opinion as to how each symptom or manifestation affects, and to what extent, his industrial adaptability. The examiner must express an opinion as to the extent that the wound residuals interfere with the veteran's ability to work. Any opinions expressed must be accompanied by a complete rationale. 6. The RO should also obtain and consider the veteran's VA vocational rehabilitation counseling file that was created with his application for assistance in December 1995. 7. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 8. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the claim of entitlement to an initial evaluation in excess of 30 percent for PTSD. In this regard, the RO should document its consideration of the applicability of 38 C.F.R. § 3.321(b)(1) (1999) as to extraschedular evaluation, and Fenderson v. West, 12 Vet. App. 119 (1999), as to assignment of "staged" ratings. The RO should also readjudicate the issue of entitlement to a TDIU. If the benefits requested are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals