BVA9503829 DOCKET NO. 90-26 092 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the decisions of the Board of Veterans' Appeals, in July 1984 and July 1985, may be revised under the provisions of 38 C.F.R. § 3.105(a) (1994) and an earlier effective date granted for service connection and a 100 percent rating for post- traumatic stress disorder. ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran's active military service extended from January 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 1981, the RO denied service connection for "nerves" and an increased rating for a gastrointestinal disorder. The veteran disagreed and the matter was developed for appellate consideration. In May 1982, the Board remanded the case for clinical records and examination of the veteran. In January 1983, the Board again remanded the case. The RO was to obtain military, private and VA medical records and have the veteran examined. In July 1984, the Board issued a decision which included a denial of service connection for an anxiety disorder. In July 1985, the Board reconsidered and affirmed its July 1984 decision. On December 31, 1986, the RO received the veteran's claim for service connection for PTSD. An April 1987 rating decision denied the claim. A letter expressing the veteran's disagreement was received by the RO in October 1987. In February 1989, the RO received another claim for service connection for post-traumatic stress disorder (PTSD). The claim was denied in a February 1989 rating decision. Subsequently, in a June 1989 rating decision, the RO granted service connection for PTSD and assigned a 50 percent rating. In a September 1989 decision, the RO assigned a 100 percent rating for PTSD, effective the date of receipt of the February 1989 claim. A statement from the veteran was received in April 1990 and accepted as a notice of disagreement. The veteran requested an effective dating back to 1985 and that the total rating for PTSD be held to be permanent. The matter came before the Board in July 1991. Permanency of the total rating was denied. The Board granted an effective date of December 31, 1986 for service connection for PTSD with the retroactive compensation rating to be determined by the RO. By a July 1991 rating decision, the RO granted an effective date of December 31, 1986, for the 100 percent rating for PTSD. The veteran appealed to the United States Court of Veterans Appeals (Veterans Court). The Veterans Court held as a matter of law that the veteran had submitted a well grounded claim for an earlier effective date for his service connected post-traumatic stress disorder based on clear and unmistakable error (CUE) in the Board's decisions of 1984 and 1985, citing 38 C.F.R. § 3.105(a). The Veterans Court remanded the claim back to the Board for appropriate development and adjudication. The Veterans Court also found that the Board did not have an adequate medical basis for making a determination as to the permanency of the veteran's total disability. The Veterans Court vacated the Board's July 1991 decision and remanded the matter to the Board. The Veterans Court did not retain jurisdiction. [citation redacted]. In February 1994, pursuant to the decision of the Veterans Court, the Board promulgated a remand on the issue of entitlement to a finding of permanency of the total disability rating assigned for the veteran's PTSD. However, while the matter was being considered by the Board, the RO issued a November 1993 rating decision which granted permanency of the 100 percent rating for PTSD. Since the RO granted the complete benefit pertaining to that issue, the matter is no longer before the Board. The veteran has acknowledged this in a March 1994 letter. Also in that letter, he withdrew his appeal as to service connection for an anxiety disorder and alcohol abuse, so those matters are no longer at issue. In the Board's February 1994 remand, it was noted that VA was, at that time, staying consideration of claims involving allegations of CUE in a prior Board decision. The stay was imposed pending appeal of a case on that issue to the United States Court of Appeals for the Federal Circuit (Federal Circuit). Smith v Principi, 3 Vet.App. 310 (1992); Tobler v. Derwinski, 2 Vet.App. 8 (1991). The Smith case has been resolved and the stay has been lifted. The Board proceeds to consider the claim of entitlement to an earlier effective date for service connection for PTSD on the basis of CUE of the Board's July 1984 and July 1985 decisions under 38 C.F.R. § 3.105(a). Smith v. Principi, 3 Vet.App. 378 (1992), reversed sub nom., Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the Board committed error in denying service connection for a psychiatric disorder in July 1984 and July 1985. He argues that he should be given an effective date earlier than December 31, 1986, for service connection and a 100 percent rating for PTSD. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for an earlier effective date for service connection and a 100 percent rating for PTSD, based on revision of the July 1984 and July 1985 Board decisions under 38 C.F.R. § 3.105(a) (1994), must be denied because of absence of legal merit and lack of entitlement under the law. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. In July 1984, the Board denied service connection for an anxiety disorder. 3. In July 1985, the Board reconsidered its July 1984 decision. The Board found that there was no obvious error in the July 1984 decision and affirmed the denial of service connection for an anxiety disorder. 4. The veteran has asserted a claim that the Board's July 1984 and July 1985 decisions contained CUE and should be revised under 38 C.F.R. § 3.105(a) (1994). CONCLUSION OF LAW The criteria for revision of the Board's July 1984 and July 1985 decisions have not been met. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 3.105(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the "law of the case" doctrine, the Board may not, on its own initiative, dismiss issues that have been remanded by the Veterans Court. See Browder v. Brown, 5 Vet.App. 268 (1993). However, there is authority indicating that the "doctrine of 'law of the case' must yield to an intervening change of controlling law between the date of the first and the subsequent consideration of the question." Johnson v. Brown, 7 Vet.App. 25, 27 (1994) (citing Amen v. City of Dearborn, 718 F.2d 789, 794 (6th Cir. 1983), cert. denied, 465 U.S. 1101, 104 S. Ct. 1596, 80 L. Ed. 2d 127 (1984)). In other words, on remand, an inferior court or administrative agency may consider a change in controlling law rather than follow the initial mandate of the superior court. In light of this authority, although the Board must address the issues that have been remanded by the Veterans Court, the Board should consider those issues in light of the current, controlling law rather than adjudicate the issues as framed and first considered by the Veterans Court. The Veterans Court Decision of August 1993, stated that, under 38 C.F.R. § 3.105(a) (1992), the Board was required to revise previous Board decisions based on CUE. The Veterans Court found that the veteran had raised a claim of CUE in the Board's 1984 and 1985 decisions and that the Board had not adjudicated the matter. The matter was remanded to the Board for appropriate development and readjudication. The Veterans Court had made a similar decision in Smith. In Smith, the Federal Circuit discussed, at length, the process by which veterans' claims are adjudicated. It considered 38 C.F.R. § 3.105 (1994) along with its sister regulations 38 C.F.R. §§ 3.103 and 3.104 (1994). These regulations taken together provide a framework, establishing the finality of unappealed decisions by an agency of original jurisdiction, with certain exceptions in which decisions may be revised. The Federal Circuit went on to point out that the finality and revision of Board decisions are governed by other provisions in the law and regulations. 38 U.S.C.A. §§ 7103, 7104; 38 C.F.R. §§ 20.1000, 20.1100, 20.1105 (1994). In this case, the Board decisions at issue followed that process. The Board's July 1985 decision was a reconsideration of its July 1984 decision for obvious error under the regulations referred to by the Federal Circuit. The Federal Circuit concluded that 38 C.F.R. § 3.105(a) (1994) does not apply to decisions of the Board and that otherwise final decisions of the Board are not subject to collateral review for CUE under 38 C.F.R. § 3.105(a). The Federal Circuit reversed the memorandum decision of the Veterans Court in Smith. An appeal was not taken and time to appeal the Smith case has expired. In accordance with the current, controlling law, established by the Federal Circuit, a Board decision can not be reviewed and revised under 38 C.F.R. § 3.105(a) (1994). CUE is the criteria for review and revision of decisions by the RO or other agency of original jurisdiction under 38 C.F.R. § 3.105(a) (1994). Since the current law prohibits revision of Board decisions under 38 C.F.R. § 3.105(a) (1994), it would now be incorrect to review the Board's decisions of July 1984 and July 1985 for CUE. The Veterans Court has noted that, in veteran's law, the term "well grounded" deals with the character of the evidence presented by the claimant. In cases were the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of absence of legal merit or lack of entitlement under the law. Sabonis v. Brown, No. 92-1123 (U.S. Vet. App. Apr. 28, 1994), slip op. at 5. Under the ruling of the Federal Circuit in Smith, the claim that the Board's July 1984 and July 1985 decisions contain CUE and should be reviewed and revised under 38 C.F.R. § 3.105(a) does not assert a legal basis for review and revision of the claim. The claim lacks legal merit and must be denied. ORDER As the Board's July 1984 and July 1985 decisions may not be reviewed and revised under the provisions of 38 C.F.R. § 3.105(a) (1994), the benefits sought on appeal are denied. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.