Citation Nr: 0003161 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-00 415A ) DATE ) ) THE ISSUE Whether the Board of Veterans' Appeals committed clear and unmistakable error in an October 31, 1994 decision denying entitlement to payment of unauthorized medical expenses incurred at a state psychiatric facility from April 13 to April 23 of 1990. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to August 1973. In a letter received by the Board of Veterans' Appeals (Board) on April 15, 1999, the veteran submitted a claim alleging clear and unmistakable error (CUE) in an October 31, 1994 decision denying entitlement to payment of unauthorized medical expenses incurred at a private psychiatric facility from April 13 to April 23 of 1990. This claim was received subsequent to the Board's March 1998 denial of the veteran's February 1998 claim for reconsideration of the October 1994 decision and the issuance of an April 1999 letter informing the veteran of his right to file a CUE motion. FINDINGS OF FACT 1. In a decision issued on October 31, 1994, the Board denied entitlement to payment of unauthorized medical expenses incurred at a state psychiatric facility from April 13 to April 23 of 1990. 2. The record does not suggest that any of the correct facts, as they were known at that time, were not before the Board at the time of the October 1994 decision. 3. The October 1994 decision by the Board to deny entitlement to payment of unauthorized medical expenses incurred at a state psychiatric facility from April 13 to April 23 of 1990 did not involve improper application of statutory and regulatory provisions extant at the time of the decision. CONCLUSION OF LAW The October 31, 1994 decision, in which the Board denied entitlement to payment of unauthorized medical expenses incurred at a state psychiatric facility from April 13 to April 23 of 1990, does not contain clear and unmistakable error. 38 U.S.C.A. § 7111 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.1400, 20.1403 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 7111 (West 1991 & Supp. 1999), the Board has, for the first time, been granted the authority to revise a prior decision of the Board on the grounds of CUE. A claim requesting review under the new statute may be filed at any time after the underlying decision is made. Pursuant to VAOPGCPREC 1-98 (Jan. 13, 1998), the Board's new authority applies to any claim pending on or filed after November 21, 1997, the date of enactment of the statute. See 38 C.F.R. § 20.1400 (1999). The statute and implementing regulation provide that a decision by the Board is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. A request for revision of a Board decision based on CUE may be instituted by the Board on its own motion or upon the request of the claimant. 38 U.S.C.A. § 7111 (West 1991); 38 C.F.R. § 20.1400 (1999). In the implementing regulation, CUE is defined as: a very specific and rare 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. 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. 38 C.F.R. § 20.1403(a) (1999). The record to be reviewed 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. To warrant revision of a Board decision on the grounds of CUE, 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 deemed clear and unmistakable. 38 C.F.R. § 20.1403(c) (1999). Examples of situations that are not CUE are: (a) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (b) a failure to fulfill the VA's duty to assist the veteran with the development of facts relevant to his or her claim; or (c) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d) (1999). CUE also does not encompass 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) (1999). Prior decisions issued by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) with regard to the issue of CUE in an RO rating decision provide a further framework for determining whether CUE exists in a Board decision. The Court has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has also held that a finding that there was such error "must be based on the record and the law that existed at the time of the prior . . . decision." Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992). Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute clear and unmistakable error. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one which would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In this case, the veteran, through his representative, has argued several bases for finding CUE in the October 1994 Board decision. The veteran has argued that, at the time of his April 1990 hospitalization at Massillon Psychiatric Center, a division of the Ohio Department of Mental Health, he was acutely psychotic and could be considered a "medical emergency." Second, the veteran has argued that no VA medical facilities were feasibly available at that time, given his medical status. Third, he contends that he was incompetent and under guardianship of his mother at the time of the hospitalization and that he was transferred to Massillon Psychiatric Center without his guardian's permission. Under the laws and regulations of the VA in effect at the time of the October 1994 Board decision, in order to be entitled to reimbursement or payment for medical expenses incurred without prior authorization, the medical treatment in question must have been for either: (a) an adjudicated service-connected disability; or (b) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability; or (c) any disability of a veteran who has a total disability permanent in nature and resulting from a service-connected disability. It must also have been shown that a medical emergency, of such nature that delay would have been hazardous to life or health, existed. Furthermore, it must have been shown that no VA or other federal facilities were feasibly available, and that an attempt to use them beforehand would not have been reasonable, sound, wise, or practical, or that treatment had been or would have been refused. 38 U.S.C.A. § 1728 (West 1991); 38 C.F.R. § 17.80 (1993) (subsequently redesignated as 38 C.F.R. § 17.120 (1999)). Also, at the time of the October 1994 Board decision, legal authority prohibited payment for unauthorized medical services when treatment was procured through non-VA sources in preference to available VA facilities. 38 C.F.R. § 17.89 (1993). In reviewing the facts of this case, the Board notes that, at the time of the hospitalization in question, the veteran's service-connected chronic undifferentiated schizophrenia was evaluated at the 100 percent rate. The Board also observes that the veteran was admitted to Massillon Psychiatric Center on April 13, 1990 on transfer from another facility, with an emergency slip, after reportedly having become homicidal and violent toward family and neighbors. The admitting diagnoses were paranoid schizophrenia, in acute exacerbation; and rule out bipolar disorder, manic. Progress notes from April 13, 1990 reflect that the veteran's treatment rights were discussed with him and that he was started on psychotropic medication. On April 16, 1990, the veteran refused to be referred to a VA hospital and indicated that he wanted "to serve his time" at Massillon Psychiatric Center. A progress note from April 20, 1990 indicates that the veteran had a 100 percent service-connected disability but refused to go to the Brecksville, Ohio VA Medical Center (VAMC). This note also indicates that the veteran's mother refused to make him go there. The hospital discharge summary reflects that the veteran showed considerable improvement during the hospitalization, and he requested a discharge instead of transferring to a VA hospital. At discharge, his psychiatric diagnosis was paranoid schizophrenia, chronic, in acute exacerbation. The claim for VA payment of unauthorized medical expenses was filed by the Ohio Department of Mental Health and was denied by the Brecksville VAMC on the basis that VA treatment was available. In his August 1991 Notice of Disagreement, the veteran reported that, in April 1990, local police took him to a private facility and that he was then transferred to Massillon Psychiatric Center, even though he had informed the police and the hospital personnel that he was service- connected for a psychiatric disorder, and he indicated that neither he nor his guardian gave permission for the transfer to Massillon Psychiatric Center. In his Substantive Appeal, received by the Cleveland VARO in October 1991, the veteran noted that, although he was no longer under a guardianship, he was incompetent at the time of the Massillon Psychiatric Center admission and did not recall refusing VA treatment. Also, his mother signed an accompanying statement indicating that Massillon Psychiatric Center had called her and that she had given her consent for a transfer to a VA facility. In its October 1994 decision, the Board took note of the facts described above but found no indication that, at the time of admission to Massillon Psychiatric Center, the veteran's mental state was of such a nature that a VA facility was not feasibly available. The Board noted that the Brecksville VAMC was staffed and geographically accessible to provide the necessary care, but records from April 1990 reflect that both the veteran and his guardian declined to permit transfer to a VA facility. As such, in essence, the April 1990 non-VA treatment was received in preference to feasibly available to VA care. Moreover, the Board indicated that the veteran was initially in state custody and that the VA is not obligated to furnish treatment when an agency of a state government is under a legal duty to provide care in a state institution. 38 U.S.C.A. § 1710(g) (West 1991) (since redesignated as 38 U.S.C.A. § 1710(h) (West 1991 & Supp. 1999)). As such, the Board found that, since the veteran was under state custody, the VA was not obligated to provide him with care. Therefore, he was not entitled to payment of unauthorized medical services provided by the state. In reviewing the facts of this case, the Board observes that there is no indication, and the veteran has not alleged, that the correct facts, as they were known at the time, were not before the Board at the time of the issuance of the October 1994 decision. There is also no indication that the correct laws and regulations were incorrectly applied. Rather, the Board applied the laws and regulations described above, specifically 38 C.F.R. §§ 17.80 and 17.89 (1993), and found that, although the veteran was hospitalized for a service- connected disability, treatment at a non-VA facility was received in preference to feasibly available VA care. As such, the Board finds that, in the October 1994 decision, the Board correctly applied the statutory and regulatory provisions in effect at the time of the October 1994 decision. In short, there is no indication that the Board failed to correctly apply the statutory and regulatory provisions extant at the time of the October 1994 decision to the correct facts, as they were known at the time. In the absence of the kind of error of fact or law which would compel a conclusion that the result would have been manifestly different but for the error, there is simply no basis upon which to find CUE in the Board's October 31, 1994 decision. The veteran's motion must, therefore, be denied. ORDER In the absence of clear and unmistakable error in the October 31, 1994 Board decision denying entitlement to payment of unauthorized medical expenses incurred at a private psychiatric facility from April 13 to April 23 of 1990, the motion is denied. S. L. KENNEDY Member, Board of Veterans' Appeals