BVA9503572 DOCKET NO. 93-07 327 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Whether there was clear and unmistakable error in a December 1955 rating decision which reduced the rating for the veteran’s service connected anxiety reaction from 30 percent disabling to noncompensably disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from December 1939 to September 1945. This case came before the Board of Veterans’ Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Ft. Harrison, Montana, in December 1992 which denied the claimed benefits. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that the December 1955 rating decision was clearly and unmistakably erroneous in reducing the evaluation for his service-connected anxiety reaction from 30 percent to 0 percent disabling. It is alleged that the veteran experienced restlessness, in that he did not like to stay in any one place, as in a meeting, very long, that he continued to (as before) to react to stressful situations, that the reaction did not occur until after the acute aspects of the event had subsided, that there appeared to be some somatic preoccupation, and that he showed evidence of anxiety, apprehension and restlessness. 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 file. 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 December 1955 rating decision was not clearly and unmistakably erroneous in reducing the rating for anxiety reaction to noncompensably disabling. FINDINGS OF FACT 1. A rating decision in December 1955 reduced the rating for the veteran’s service-connected anxiety reaction from 30 percent to 0 percent disabling. Although the veteran was notified of that determination, he filed no appeal. 2. The December 1955 rating decision was consistent with and supported by the evidence then of record. CONCLUSION OF LAW The final December 1955 rating decision, which reduced the rating for the veteran’s anxiety reaction from 30 percent to 0 percent disabling, was not clearly and unmistakably erroneous. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009; effective from January 25, 1936, to December 31, 1957; 1945 VA Rating Schedule, Diagnostic Codes 9101, 9105 (1945); 38 C.F.R. § 3.172 (1949). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual background The service medical records indicate that at the time of the veteran’s enlistment examination no psychiatric abnormalities were noted. He was seen first for psychiatric symptomatology in December 1941, when he reported being bothered by noises and the sound of airplanes, and that he was easily scared, wanted to sit in a corner, ate poorly, slept little, heard voices, and felt people were talking about him. He was diagnosed as having a psychosis. The summary of the veteran’s separation examination notes a diagnosis of "anxiety state, much improved." A rating decision in December 1945 granted service connection for moderate anxiety neurosis, and assigned a 10 percent rating. On VA compensation examination in December 1946, the examiner stated that the veteran was emotional, with a general tendency to recovery. His thinking processes and attention were good, and his insight, cooperation and deportment were average. He denied any current delusions or hallucinations. It was noted that the veteran was somewhat nervous, restless and anxious. The examiner’s diagnosis was "anxiety neurosis moderate." A rating decision in December 1946 confirmed the 10 percent rating. In August 1950, another VA compensation examination was conducted. The veteran complained of difficulty sleeping, and stated that when he did not sleep uncontrolled thoughts went through his mind. He also reported that he would get nervous and jittery when "pushed" by his work. The veteran denied any hallucinations, delusions, or ideas of reference. For the last year, he had had no further occurrence of battle dreams. The veteran indicated that he continued to become upset by unexpected noises and happenings. The examiner noted that he spent his time constructively and enjoyed the company of other people. There was no evidence of psychosis, but the veteran did exhibit evidence of anxiety, apprehension and obsessive thinking. Following that examination, a rating decision in August 1950 increased the evaluation for anxiety reaction to 30 percent disabling. Another VA compensation examination was conducted in November 1955. The veteran recounted his on-the-job training and career advancement since 1950, and indicated that he was then employed as an electrification advisor. He had reportedly recently been evaluated because he thought he might have had heart disease and had also received treatment for a skin condition thought possibly to be neurodermatitis. On VA examination, his memory was noted to be good, and he was oriented. He answered questions readily and logically. The veteran indicated that he was restless, in that he did not like to have to stay in any one place, as in a meeting, for very long. He said that, if he was busy at the office or at home, he usually felt "quite good." He denied trouble sleeping and frequent dreams. The veteran also denied having obsessive-compulsive feelings. He reported that he continued to react to stressful situations, but he stated that the reaction would not occur until after the acute aspects of the situation had subsided. He continued to exhibit some somatic preoccupation. The veteran also worried about impending situations, such as that examination. The examiner indicated that there continued to be some evidence of anxiety, apprehension and restlessness. He noted that the veteran’s attention was easily gained and well-sustained. The veteran reported that his marital situation was very satisfactory. He noted that he spent his spare time constructively and enjoyed the company of other people. The examiner stated that the anxiety reaction resulted in mild incapacity. On the basis of the report of that examination, in December 1955 the RO reduced the rating for the veteran’s anxiety reaction to 0 percent disabling, effective from February 1956. The veteran was promptly notified of that determination, but filed no appeal. In June 1992, the veteran’s representative claimed the existence of clear and unmistakable error in the December 1955 rating decision in reducing the rating to 0 percent disabling, stating that the evidence clearly showed that the psychiatric manifestations of the veteran’s service-connected anxiety reaction warranted a 10 percent evaluation. Analysis There is a presumption of validity to otherwise final decisions, and, in the face of a claim of error, the presumption is even stronger. See Martin v. Gray, 142 U.S. 236 (1891); Henderson v. Kibbe, 431 U.S. (1977); Sullivan v. Blackburn, 804 F.2d 885 (5th Cir. 1986). "Clear and unmistakable error" (CUE) is a very specific and rare kind of error, of fact or law, that is undebatable, and 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. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time must have been incorrectly applied. The determination must be based on the record that existed at the time of the prior decision. Damrel v. Brown, 6 Vet.App. 242, 245-46 (1994); Fugo v. Brown, 6 Vet.App. 40, 44 (1993); Russell v. Principi, 3 Vet.App. 310, 313-14 (1992). The 1945 Rating Schedule (as in effect in 1955) stated that, in general, disability evaluations were to be assigned by applying a schedule of ratings which represented, as far as could practicably be determined, the average impairment of earning capacity in civil occupations due to the service-connected disability. 38 C.F.R. § 3.141 (1949). The basis of such evaluations was the ability of the body as a whole, or of a system or organ of the body, to function under the circumstances of ordinary activity, that is, in daily life including employment. Where there was a question as to which of two evaluations should be applied, the claimant was entitled to the higher evaluation. The rating criteria in effect at the time of the December 1955 rating decision provided that anxiety state was to be rated as neurasthenia. For mild neurasthenia, a noncompensable rating was to be assigned. A 10 percent evaluation was warranted for moderate impairment. Moderately severe symptoms, with characteristic mental and physical fatigability unrelated to any disease process or toxic agents; fairly frequent headaches not due to toxemia, uncorrected visual defect, etc.; fairly frequent prolonged periods of insomnia; or objectively ascertained vasomotor instability, approximating neurocirculatory asthenia with decided reduction in exercise tolerance; which were productive of considerable social and industrial inadaptability warranted a 30 percent rating. Diagnostic Codes 9101, 9105 (1945). The veteran’s contentions here are, essentially, that the RO in December 1955 incorrectly applied the appropriate rating criteria, and that the evidence reflected psychiatric manifestations warranting a 10 percent, rather than a noncompensable, rating. First, the Board finds that the allegations raise a valid claim of CUE, in that they constitute more than mere disagreement with the weighing of the evidence. Rather, they allege misapplication of the existing regulations to the facts as they were then known. Second, a regulation in effect at the time of the December 1955 rating decision stated that ratings on account of diseases subject to temporary or episodic improvement, e.g., a psychoneurosis, will not be reduced on the basis of any one examination except in those instances where all the evidence of record clearly warrants the conclusion that permanent improvement of the condition has been demonstrated. 38 C.F.R. § 3.172 (1949). At the time of the December 1955 rating decision, the November 1955 VA compensation examination was the only medical evidence which had been added to the file since a similar examination in 1950. The Board would point out, however, that the 1955 examination was a thorough one. Clear improvement was noted both in the clinical findings noted by the examiner and in the symptoms reported by the veteran. Whereas the veteran had reported in 1950 that he would get nervous and jittery when "pushed" by his work, no similar complaint was expressed in 1955. Although the examiner noted in 1955 that there was still some evidence of anxiety, apprehension and restlessness, the 1950 finding of obsessive thinking was not noted in 1955. In addition, the examiner stated in November 1955 that the veteran’s anxiety disability was productive of only mild impairment; on VA examination in 1946, the impairment was described as moderate. The Board believes that the examiner’s findings and conclusions in 1955 gain added significance in light of the fact that that examiner also conducted the 1950 examination; the 1955 clinical findings clearly were not viewed in a vacuum. Moreover, the veteran himself reported in 1955 that he had successfully progressed in his career in the interim, evidencing a reduced degree of impairment during the intervening years. Therefore, the Board finds that there was sufficient evidence of record in December 1955 for the RO to conclude that the provisions of 38 C.F.R. § 3.172 were not violated by reducing the rating for anxiety reaction. The fact that the RO did not expressly note consideration of that regulation in making its determination is felt to be harmless error inasmuch as the Board now finds that the reduction in the evaluation was supported by the evidence of record in 1955. Additionally, the Board cannot agree with the veteran and his representative that the evidence of record at the time of the December 1955 rating decision compels a finding that a compensable rating was warranted. While the veteran did report some psychiatric symptomatology (e.g., that he was restless, preferring not to stay in one place for any length of time, and continuing to react to stressful situations), his trouble sleeping and frequent dreams had apparently disappeared, and he indicated that he usually felt "quite good." The examiner noted that he spent his spare time constructively and enjoyed the company of other people. Moreover, it became apparent during the examination, as indicated above, that he had successfully progressed in his employment field since his prior examination. Such manifestations clearly do not meet the criteria for a 30 percent rating (the rating previously assigned for the psychiatric disability): there were no symptoms of mental or physical fatigability, objectively ascertained vasomotor instability, or other evidence of considerable social and industrial inadaptability. Indeed, the veteran’s incapacity was described as mild, not moderate as it had been by the 1946 VA examiner. As to whether the RO was justified in assigning a noncompensable evaluation, rather than a 10 percent rating, the Board finds that it was within proper rating judgment for the RO to conclude that the manifestations reported were commensurate with only mild impairment. Although the veteran did have some psychiatric symptomatology, the symptoms reported were described as restlessness and reaction to stressful situations. The veteran stated that his marital situation was very satisfactory, that he spent his spare time constructively, and that he enjoyed the company of other people. In addition, his difficulty sleeping, previously his chief complaint, was no longer present. Also, the veteran was working, and reported significant advancement in his employment. Other than not liking to have to stay in one place, as in a meeting, for long periods of time, the report of the 1955 examination does not reflect any difficulty at work due to his anxiety. Moreover, although the Board is not bound by an examiner’s characterization of his own findings, such characterization is evidence to be considered. The November 1955 examiner indicated that the veteran’s anxiety resulted in mild impairment. Such symptoms and findings fit most closely with the criteria for a noncompensable rating, using the rating criteria in effect at the time of the December 1955 rating decision. Therefore, it cannot be said that it is undebatable that the noted symptoms and findings required continuation of the 30 percent or assignment of a 10 percent rating, as opposed to the 0 percent rating which was assigned. Neither is the Board now compelled, on the basis of the above evidence, to conclude that reasonable minds could not have differed as to the proper evaluation to be assigned for the veteran’s anxiety state based on the evidence of record at the time of the December 1955 rating decision. To the contrary, such minds easily might well have differed, and thus the Board finds that the December 1955 rating decision was supported by the record. The Court, along with the law and regulations, has placed the burden on the claimant to show that the prior determination was clearly and unmistakably erroneous, rather than requiring VA now to show that the final, unappealed determination was correct. The Board finds that the veteran has not met his burden. Therefore, the criteria for finding CUE, as set forth by the Court, simply are not satisfied. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against the veteran’s claim. Therefore, the veteran’s claim of clear and unmistakable error in the December 1955 rating decision must be denied. ORDER The appeal is denied. D. C. SPICKLER 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.