BVA9503561 DOCKET NO. 89-47 883 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether the July 1948 rating decision which severed service connection for a neurasthenia psychoneurosis was clearly and unmistakably erroneous. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder. 3. Entitlement to a permanent and total disability rating for pension purposes prior to August 30, 1989. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington (RO) which denied the benefits sought on appeal. The veteran, who had active service from January to June 1944, appealed those decisions to the BVA, and the case was initially received in December 1989. BVA decisions dated in June 1990, July 1991 and November 1992 remanded the case to the RO for further development, and the case was again received at the Board in December 1994. The record reflects an assumption that the veteran was entitled to non service connected pension benefits as of his 65th birthday on August 30, 1989, subject to submission by him of financial information. A Deferred Rating dated July 1994 contains a notation "Income OK," but the record does not contain any VA Form 21-8947 (Compensation and Pension Award), or other such award action, nor does the record contain a copy of any notice to the veteran concerning an award of pension benefits. Also, a supplemental statement of the case dated in August 1994 indicates that "[s]ince the veteran did not respond to requests for an income statement, his claim for pension after age 65 was abandoned as of November 16, 1990." It is unclear to the Board what award of pension benefits has been made to the veteran after his 65th birthday, or what the effective date would be for any such award. Nevertheless, the only matter prepared for appellate review regarding nonservice connected pension benefits is the veteran's entitlement to a permanent and total disability rating for pension purposes prior to August 30, 1989. Accordingly, the decision will be limited to that issue. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the RO was incorrect in not granting the benefits sought on appeal. The veteran maintains, in substance, that he was discharged from service with a disability which had its onset during service. The veteran points out that he was paid compensation benefits for this disability until he requested that the compensation payments be discontinued. The veteran has also argued that he had no psychiatric disorder prior to service, and that he was unaware that he had such a disorder during or following service until he requested a reinstatement of his compensation award. The veteran disputes the accuracy of some service and post service medical records, and reference is made to the evidence of record, particularly statements submitted at his personal hearing, as supporting this contention. The veteran also essentially contends that he was totally disabled and unable to perform any type of substantially gainful employment prior to the date of his 65th birthday. The veteran reports that he became permanently disabled in 1984, and that attempts at real estate sales were subsequently unsuccessful. Reference is made to the evidence of record as supporting these contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the July 1948 decision which severed service connection for neurasthenia psychoneurosis was not clearly and unmistakably erroneous, and that the preponderance of the evidence is against the claims for service connection for an acquired psychiatric disorder and for a permanent and total disability rating for pension purposes prior to August 30, 1989. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service medical records clearly and unmistakably demonstrate that a psychoneurosis preexisted the veteran's entry into military service. 3. The preexisting psychoneurosis manifested during service was not shown to have increased in severity or chronically worsened during service. 4. The July 1945 rating decision which granted service for a psychoneurosis was not adequately supported by the evidence then of record or consistent with VA laws and regulations then in effect. 5. The VA psychiatric examination completed in December 1992 concluded with no psychiatric diagnosis and no indication of mental impairment. 6. The medical evidence dated prior to August 30, 1989, does not demonstrate that the veteran's disabilities were of such a nature and severity as to preclude the performance of all types of substantially gainful employment in keeping with his age, education and occupational experience. CONCLUSIONS OF LAW 1. The July 1948 rating decision, which severed service connection for neurasthenia psychoneurosis, was not clearly and unmistakably erroneous. 38 U.S.C.A. § 726 (1946); 38 C.F.R. §§ 2.1009, 2.1063, 2.1090 (1947). 2. An acquired psychiatric disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107, 5108 (West 1991); 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.306 (1994). 3. The requirements for a permanent and total disability rating for pension purposes prior to August 30, 1989, have not been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.342, 4.16, 4.17 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that the veteran's claims are not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. As a further preliminary matter, the Board observes that the RO has determined that the evidence submitted in connection with the veteran's request to reopen a claim for service connection for an acquired psychiatric disorder, was new, but not material. As such, the RO declined to reopen the veteran's claim for service connection. The Board disagrees. In this regard, the Board notes that service connection for a psychoneurosis was severed in July 1948 based on evidence then of record, which was found to demonstrate that a psychoneurosis preexisted service and was not aggravated during the veteran's period of military service. Testimony presented by the veteran at a personal hearing and statements submitted at that time address the basis of the severance of service connection. Consequently, the Board finds that the evidence is new and material and sufficient to reopen a claim for service connection for a psychiatric disorder. The RO's failure to make such determination, however, amounts to harmless error in this case. In this regard, the Board notes that the May 1993 supplemental statement of the case summarized the pertinent evidence of record, and the veteran has clearly argued his claim for service connection for a psychiatric disorder on the merits, rather than addressing whether the additional evidence is new and material and sufficient to reopen the claim. Consequently, the Board finds that the veteran is not prejudiced by addressing his claim on the merits despite the RO's failure to do so. See Bernard v. Brown, 4 Vet.App. 384, 392 (1993). Also, the Board notes that this case has been the subject of three prior remand decisions, and the Board will endeavor to interpret Court precedent, RO actions and BVA rules of practice to secure a just and speedy decision in this appeal. See 38 C.F.R. § 20.1(b) (1994). I. Acquired Psychiatric Disorder Procedurally, a June 1944 rating decision granted service connection for neurasthenia psychoneurosis based on service medical records, and assigned a 10 percent evaluation. A rating decision dated in November 1947 continued and confirmed the 10 percent evaluation. In 1948, a rating decision in April identified clear and unmistakable error in the June 1944 rating decision, and in a letter to the veteran dated in April 1948, the RO informed the veteran of this error and the proposal to sever service connection in 60 days. That letter explained to the veteran that, in essence, his service medical records showed that his nervous condition preexisted service and was not aggravated during service. A rating decision dated in July 1948 severed service connection for the veteran's neurasthenia psychoneurosis and the veteran was notified of that decision and of his appellate rights by a letter dated in July 1948. An appeal was not filed. It has now been contended that the July 1948 rating decision was clearly and unmistakably erroneous in severing service connection. Since the June 1944 rating decision which granted service connection for neurasthenia psychoneurosis was based on the veteran's service medical records, those records must be examined to determine whether the June 1944 rating decision was correct or erroneous in granting service connection for neurasthenia psychoneurosis. The veteran's service medical records disclose that, on February 4, 1944, less than one month after entering active duty on January 8, 1944, the veteran was admitted to a hospital with complaints of vague abdominal pains, fatigue, dizziness, headaches and palpitations. Following a hospitalization from February 4 to February 25, 1944, the diagnosis was "neurocirculatory asthenia, mild, cause undetermined, manifested by fatigue, palpitation, sweating, dizziness, headache and vague abdominal pain." Service physicians at that time determined that the disorder was not incurred in the line of duty, but rather existed prior to induction. In April 1944, the veteran was hospitalized complaining of pain in the knees, ankles and wrists of three weeks' duration. The initial working diagnoses or impressions were possible rheumatic fever and impending psychosis. An interview of the veteran by service physicians indicated that the veteran informed treating physicians: ...that he had not been feeling well for the past one and one-half years, as he felt tired all the time. And because of this fatigue, he could only work about three days a week. He went to a doctor in October 1943 because of his stomach which was bothering him--that is, he had cramps, soreness in the right lower quadrant, and a diarrhea. He was given vitamin pills and powders, and experienced no relief. He was inducted into the Army rather suddenly on 8 January, 1944, after having been promised a deferment. He was sent to Monterey, California, and then to Buckley Field, Colorado. There he took orientation courses and did very little work. He went on sick call in early February, complaining of pain in the right lower quadrant and continuous vomiting. He was placed in the Station Hospital at Buckley Field at 15 February and was given X-ray examination, and X-ray of the chest. Then he developed a laryngitis and ran a low grade temperature. Because his wife was about to have a baby, he was given a furlough on 13 March 1944. The baby was born 25 March 1944. About 10 March, while he was at home on furlough, the patient states he began to develop pains in the feet, ankles with swelling. He could not put his shoes on. Later, on the train, he had a pain in his knee and finally developed a pain in his shoulder. He did nothing about this condition but obtained a furlough extension because of the arrival of the baby. Now with two days of his furlough remaining, he walked 2 miles to the hospital and was admitted. The veteran also underwent a neuropsychiatric consultation in May 1944. That report indicated that the veteran reported: Patient states that, since appendectomy in 1942 in San Francisco hospital, he has periods of exhaustion, insomnia, headaches, and poor appetite. He states he worked 4 years as a sheet metal worker at Ft. Mason under Colonel Griffin, ATS. This was an 'essential job' and prevented him being drafted before. He states that in the last year he has never completed one week of work and has had frequent layoffs because of the above sickness. The patient has 3 months service. The patient has a long history of sickness since childhood, with pneumonia 4 times and a diagnosis of tuberculosis in high school. In addition he has had poor emotional control and a high degree of nervousness since childhood. Diagnosis: Psychoneurosis, neurasthenia, severe, chronic. L.O.D., no., EPTI. Statements made by the veteran to service physicians appear to have been corroborated by an independent source. The final summary of the veteran's hospitalization makes reference to a statement from a local public health worker who was well acquainted with the veteran. The veteran was separated from service with a Certificate of Disability for Discharge which indicated that he was unfit for service because of "psychoneurosis, neurasthenia, chronic, severe, manifested by weakness, pains in legs and nervousness" which was first manifested in civilian life. At no time during the veteran's hospitalization was an organic or physical cause of the veteran's complaints ever identified. The June 1944 rating decision which granted service connection for neurasthenia psychoneurosis does not contain any narrative analysis of the evidence considered in granting service connection, specifically, the evidence contained in the veteran's service medical records. Based on a VA examination performed in June 1945, a July 1945 rating decision confirmed and continued the 10 percent evaluation assigned by the June 1944 rating decision. A November 1947 rating decision appears to have simply reevaluated the veteran's disability under the 1945 Schedule for Rating Disabilities and continued the 10 percent evaluation assigned by the 1933 Schedule for Rating Disabilities. In April 1948, the RO proposed to sever service connection based on clear and unmistakable error of the prior rating decisions, and after notification of this proposed severance to the veteran, a July 1948 rating decision severed service connection for neurasthenia psychoneurosis. The Board now finds and concludes that the July 1948 rating decision which severed service connection for neurasthenia psychoneurosis was not clearly and unmistakably erroneous. The July 1948 rating decision considered whether the original grant of service connection was clearly and unmistakably erroneous in failing to consider evidence provided by the veteran to service physicians concerning the preservice onset of his disability and the continuation of similar symptomatology shortly following the veteran's entry into service. The Board finds that the July 1948 rating decision was correct in determining that the June 1944 rating decision was clearly and unmistakably erroneous in granting service connection on either a direct or aggravation basis. The United States Court of Veterans Appeals (Court) has defined clear and unmistakable error as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). The Court has also held that such error "must be based on the record and the law that exist at the time of the prior...decision." Russell v. Principi, 3 Vet.App. 310, 314 (1992). The mere misinterpretation of facts does not constitute clear and unmistakable error. Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991). 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 law, that when called to the attention of later reviewers compels a 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). While the veteran now disputes the analysis and conclusions reached by the July 1948 rating decision based on the evidence then of record, and indeed, the veteran disputes the accuracy, veracity and authenticity of some of the evidence of record at that time, the July 1948 rating decision must be viewed from the context of the evidence available for consideration at that time. The Board's analysis of the July 1948 rating decision discloses that the rating decision was adequately supported by and consistent with the evidence of record. The evidence aptly demonstrated that the veteran's psychoneurosis preexisted his entry onto military service, having had its onset so soon after entering service and based on the veteran's statements to treating physicians. This evidence was sufficient to rebut the presumption of soundness which attached to the veteran based on the failure of the service entrance examination to note the presence of a preexisting disability. Also, the evidence was adequate to support a conclusion that the veteran's preexisting psychoneurosis did not chronically worsen or increase in severity so as to preclude a grant of service connection based on aggravation. The veteran himself reported experiencing essentially similar symptomatology prior to service, and service physicians concluded that the veteran's disability was not aggravated during service. Also, the veteran's Certificate of Disability for Discharge concluded that the veteran's disability was not incurred in service, was not aggravated by active service and was not incurred in the line of duty. Consequently, the Board finds that the July 1948 rating decision which severed service connection for neurasthenia psychoneurosis was not clearly and unmistakably erroneous. Turning to the veteran's reopened claim for service connection for a psychiatric disorder, the evidence essentially fails to demonstrate that the veteran currently has any psychiatric disorder, let alone a psychiatric disorder which is related to service. "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (formerly § 310). In the absence of proof of a present disability, there could be no valid claim. Our perusal of the record in this case shows no claim of or proof of present disability. Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992)." Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Indeed, following the December 1992 VA psychiatric examination, the examiner concluded that "there is no diagnosis to be found on Axis I or Axis II, no indication of mental impairment." The examination report also indicates that "[i]t was put to him several times to identify any symptoms of nervousness, anxiety, distress, and the results are all negative. He does not have a mood disorder. He shows no evidence of a neurotic state, appears to be a fully developed gentleman with a vast appreciation of life, politics, business, is widely read, only minimally forgetful, and an excellent conversationalist." Furthermore, "[h]e does not see himself as having any psychiatric illness, nor has he ever so regarded himself, has never consulted a psychiatric physician or mental health worker, nor has he felt the need to do so." Based on this evidence, the Board concludes that service connection for a psychiatric disorder is not established. II. Permanent and Total Disability Rating for Pension Purposes Prior to August 30, 1989 In December 1987, the veteran filed a claim for nonservice- connected pension benefits. The veteran was assumed to have been entilted to pension benefits as of August 30, 1989, the date of his 65th birthday, subject to his submission of income information necessary to calculate his award. Evidence of an April 1987 private medical examination indicates that the veteran's "problem list" consisted of health maintenance, soft tissue injury of the left leg, fungal nails of the right hand, chronic obstructive pulmonary disease and benign prostatic hypertrophy. That evidence contains no opinion regarding the severity of any of the disabilities or the veteran's capacity or incapacity for performing substantially gainful employment. VA examinations performed between June and August 1989 included a general medical examination which indicated that the veteran had lung disease, possibly chronic obstructive pulmonary disease and multiple joint complaints which were described as "a rather vague problem presented by the veteran with intermittent joint complaints noted over approximately 40 years, most significantly are pain associated with swelling of the knees and ankles....At the time of this examination, however, no effusions could be documented, the joints have a full range of motion and are without functional limitations." A pulmonary function report contained a summary and impression of a normal study, and X-rays disclosed the presence of very mild degenerative osteoarthritis of the right ankle, old rib fractures and very mild degenerative osteoarthritis of the knees. Following an orthopedic evaluation, the impressions were cervical spondylosis and lumbosacral strain, but the examination disclosed that muscle strength of the upper and lower extremities was good, except for some weakness on the left biceps. A respiratory evaluation indicated that, while it was certainly possible that the veteran had some degree of pulmonary disease, the veteran's history and physical examination was not really convincing of major pulmonary impairment. A chest X-ray apparently disclosed the presence of a mild compression fracture of the thoracic spine and mild cardiomegaly. None of the examinations offered an opinion concerning the veteran's capacity for performing substantially gainful employment. As mentioned above in Part I, a VA psychiatric examination performed in December 1992 indicated that there was no psychiatric impairment. The Board is of the opinion that the medical evidence does not demonstrate that the veteran's disabilities were of such severity that he was unable to perform substantially gainful employment between December 1987 and August 1989, in keeping with his age, education and occupational experience. In this regard, the veteran's December 1987 VA application indicates that he had performed general labor for many various employers, and had completed 12 years of school with additional heating, plumbing and electrical correspondence courses completed. That form also indicated that the veteran was receiving Social Security benefits, but at the veteran's personal hearing, it was indicated that the veteran was receiving Social Security benefits based on attaining age 62, or in other words, he was receiving retirement, rather than disability benefits. (Transcript at 13.) See 20 C.F.R. § 404.310 (1994); C.f. 20 C.F.R. § 404.315 (1994). The March 1988 rating decision indicated, based on the findings of the April 1987 private examination, that the veteran's disabilities were evaluated at a combined evaluation of 30 percent, 10 percent for neurasthenia, 10 percent for a soft tissue injury of the left leg, 10 percent for chronic obstructive pulmonary disease and a noncompensable evaluation for a fungal infection of the nails. These evaluations do not appear to be inconsistent with the limited clinical findings reported on the April 1987 examination. Following the Board's November 1992 remand decision in this case, a May 1993 rating decision evaluated the veteran's nonservice-connected disabilities as 40 percent disabling, with 10 percent assigned for neurasthenia, a noncompensable evaluation for psychoneurosis, noncompensable for residuals of a neck injury, noncompensable for residuals of rheumatic fever, 10 percent for arthritis of the cervical spine and ankles (demonstrated by X-rays only), 10 percent for a soft tissue injury of the left leg, 10 percent for a lumbosacral strain, 10 percent for chronic obstructive pulmonary disease and a noncompensable evaluation for rib fractures. Based on the evidence considered by the May 1993 rating decision, it appears that the evaluations assigned were appropriate under the specific diagnostic codes for each disability under the Schedule for Rating Disabilities. In any event, most of the evidence considered by the May 1993 rating decision was dated either in the month of the veteran's 65th birthday or subsequent to that date, and none of the evidence dated prior to that date, either the April 1987 private examination or the VA examinations performed in June 1989 contain medical evidence that the veteran is totally disabled due to his disabilities. As such, the Board concludes that the evidence does not demonstrate that the veteran was unable to perform substantially gainful employment between December 1987 and August 1989. Accordingly, entitlement to a permanent and total disability rating during that time frame is denied. ORDER Clear and unmistakable error not having been found in the July 1948 rating decision which severed service connection for neurasthenia psychoneurosis, and no new and material evidence having been submitted to reopen the claim for service connection for an acquired psychiatric disorder, service connection for an acquired psychiatric disorder is denied. A permanent and total disability rating for pension purposes prior to August 30, 1989, is denied. WARREN W. RICE, JR. 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.