Donovan v. Gober

10 Vet. App. 404, 1997 U.S. Vet. App. LEXIS 831, 1997 WL 597416

• Court: United States Court of Appeals for Veterans Claims
• Decided: September 29, 1997
• Docket: No. 96-196
• Status: Published

Opinions

IVERS, Judge:

The appellant, a World War II veteran, appeals from a December 12, 1995, Board of Veterans’ Appeals (BVA or Board) decision which denied his claim for clear and unmistakable error (CUE) in an August 4, 1947, regional office (RO) decision denying service connection for psyehoneurosis. For the reasons stated below the Court will affirm the BVA’s December 12,1995, decision.

I. FACTS

The veteran served on active duty from April 1941 to November 1945, including combat in Europe during which he was awarded the Purple Heart. Record (R.) at 27, 29-30. An October 1945 VA examination was devoid of any complaints of psychological problems. R. at 20-21.

In October 1946 the appellant filed a claim for headaches, a stomach condition, and a nervous condition. R. at 43. In support of his claims he submitted a statement which explained that he had started to experience symptoms related to these ailments while “on maneuvers at the Mohavie [sic] Desert, Calif, about February 1942.” R. at 47. In addition, a statement was submitted by his private physician reporting that the appellant suffered from migraines. R. at 50. Also submitted were two statements by men who had served with the appellant and who revealed that the appellant had suffered stomach problems during service. R. at 53-54. A July 1947 VA examination diagnosed gastric neurosis and psyehoneurosis secondary to gastrointestinal disturbance. R. at 57-65. In an August 1947 RO decision the appellant was denied service connection for gastric neurosis and psyehoneurosis. R. at 68. The appellant did not appeal this decision.

In September 1985 the appellant submitted a claim for service connection for “[delayed [PTSD].” R. at 122. In December 1985 the appellant underwent a VA examination with two psychiatrists to determine whether he suffered from PTSD. The impression was:

No Diagnosis on Axis I — Currently, this veteran’s chief complaint is irritability and although he stated that he did come in seeking compensation for [PTSD], he appeared to be quite unclear as to what this meant. He actually does deny most significant psychiatric difficulties. Although he certainly has a stressor due to his four years in the service, I cannot see that he meets the criteria for [PTSD] or indeed any other major Axis I disorder. He does appear to have significant frustration related to his long history of tinnitus.

R. at 182.

In February 1986 the appellant underwent a VA social and industrial survey. The social worker opined that there were no “industrial related problems.” He stated, “I do not see any severe symptomatology, but rather mild forms of withdrawal, anger, agitation, frustration over his hearing problems, and some moodiness which may be looked upon as depression.” He concluded, “His major problems continue to be his hearing deficit and his recurring headaches.” R. at 128. In an April 1986 rating decision, the RO denied service connection for PTSD. R. at 136-37.

The appellant filed a Notice of Disagreement (NOD). R. at 145. A Statement of the Case (SOC) was issued. R. at 148-51. The appellant submitted VA Form 1-9, Appeal to the Board of Veterans’ Appeals (Form 1-9). R. at 153.

On January 8, 1987, the appellant testified at a hearing that he was not presently receiving psychiatric treatment nor had he received psychiatric treatment in the past 10 years. R. at 159. He revealed that he “periodically” had nightmares of tanks being hit and his buddies being killed. R. at 160.

In February 1987 the appellant underwent a VA examination which determined that there “appears to be no major psychiatric diagnosis on Axis I.” R. at 176. In a June 1987 rating decision service connection for PTSD was denied. R. at 180-81. A Supplemental SOC (SSOC) was issued. R. at 183-86. In May 1988 the BVA denied the appellant’s claim for service connection for an acquired psychiatric disability, to include PTSD. R. at 195-200. The Board “reviewed the entire evidence of record and [made] a de novo determination.” R. at 196.

In April 1991 the appellant requested that the RO reopen his claim for service connection for PTSD. His representative noted that the appellant had filed a claim for a nervous condition within one year of discharge. He contended that the failure to award service connection in August 1947 for psychoneurosis was CUE. R. at 202.

In May 1991 the RO denied the appellant’s request to reopen his claim. R. at 204, 212. The appellant filed an NOD. R. at 214. An SOC was issued. R. at 217-21. The appellant submitted Form 1-9. R. at 223.

In April 1992 the appellant testified that the August 1947 rating decision contained CUE. R. at 228. He stated that he was not currently receiving any psychiatric treatment and that he had worked for 49 years at the same job. R. at 229-30.

In May 1992 the appellant underwent a VA psychiatric examination and was diagnosed with PTSD. The examiner explained:

Mr. Donovan meets the criteria for PTSD. It is likely that Mr. Donovan did not fully disclose the extent of his symptomatology previously because of a tendency to minimize his symptoms. This appears to be one of his methods of coping with the psychological distress that he experiences. His symptoms cause him significant interpersonal difficulty as well as considerable psychological distress.

R. at 248.

In April 1993 the hearing officer rendered his decision finding no CUE in the prior denial of service connection for an acquired psychiatric disorder to include PTSD. It was also noted that a review of the file showed ■that psychiatric examinations in 1985 and 1987 showed no psychiatric diagnoses. R. at 254. An SSOC was issued. R. at 257-60.

In June 1993 the appellant underwent a VA examination and was diagnosed with PTSD. R. at 268-70. In July 1993 the RO reopened the appellant’s claim and granted service connection for PTSD, rated 10% disabling and effective November 5,1991. R. at 272-73. The appellant argued that the effective date should have been August 1947, the date that the appellant was diagnosed with psychoneurosis. R. at 275.

In October 1993 the RO denied the appellant’s claim for an earlier effective date. R. at 278-80. The appellant filed an NOD. R. at 282.

On December 12, 1995, the BVA rendered the decision currently on appeal. The Board determined that the August 1947 RO decision could not be collaterally attacked on the basis of CUE and that an effective date of May 1, 1991, for service connection for PTSD was warranted. R. at 8.

II. ANALYSIS

Section 3.105(a) of title 38, Code of Federal Regulations, provides:

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 [CUE]. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of [CUE] has the same effect as if the corrected decision had been made on the date of the reversed decision.

38 C.F.R. § 3.105(a) (1996). A claim of CUE is a collateral attack on a final RO decision. Smith v. Brown, 35 F.3d 1516, 1521 (Fed.Cir.1994); Eddy v. Brown, 9 Vet.App. 52, 57 (1996); Crippen v. Brown, 9 Vet.App. 412, 417-18 (1996); Duran v. Brown, 7 Vet.App. 216, 224 (1994). The CUE review.authority in 38 C.F.R. § 3.105(a) relates only to review of decisions of the agency of original jurisdiction (RO) and not to those of the BVA See Smith, 35 F.3d. at 1527. The Court has defined CUE as follows:

Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied____ [CUE] is the sort of error which, had it not been made, would have manifestly changed the outcome ... [, an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed.

Crippen, 9 Vet.App. at 418; Russell v. Pricipi, 3 Vet.App. 310, 313 (1992) (en banc). In Duran, the Court stated, “After Smith, an appellant may still assert a claim of CUE under 38 C.F.R. [§] 3.105(a) of a ‘prior, unappealed AOJ [agency of original jurisdiction] decision.’ ” Duran, 7 Vet.App. at 224 (quoting Smith, supra). The Court continued, “where an AOJ decision was appealed to and affirmed by the Board and thus subsumed by the Board’s decision, no claim of ‘clear and unmistakable error’ under 38 C.F.R. § 3.105(a) exists as a matter of law with respect to that AOJ decision.” Ibid.; Smith, 35 F.3d at 1527; see also Talbert v. Brown, 7 Vet.App. 352, 355-56 (1995); 38 C.F.R. § 20.1104 (1996) (“When a determination of the [AOJ] is affirmed by the [BVA], such determination is subsumed by the final appellate decision.”); 38 U.S.C. § 7104(a).

The appellant argues CUE in the August 1947 rating decision which denied service connection for gastric neurosis and secondary psyehoneurosis as not incurred in or aggravated by service. R. at 68. The appellant did not appeal that decision. In the May 1988 BVA decision, the Board noted that a rating action in August 1947 had denied service connection for gastric neurosis and a secondary psyehoneurosis. The Board recounted that, in 1985, the appellant’s claim was reopened and “was expanded to include consideration of entitlement to service connection for [PTSD].” The Board then reviewed the entire evidence of record and made a de novo determination. R. at 196. In the BVA’s evaluation of the evidence of record, including the July 1947 examination, the Board found that “the evidence since his discharge from service does not demonstrate that he has a psychiatric disorder, including [PTSD], as a result of that service.” R. at 199.

The Secretary refers to VA General Counsel Precedent Opinion 14-95 (May 12, 1995) [hereinafter G.C. Prec. 14-95] in support of the proposition that the reasoning and result in Smith, supra can also be applied to a situation where a final unappealed rating decision is subsequently reopened and adjudicated on the merits by the BVA. Secretary’s Brief (Br.) at 10. The opinion held:

A claim of [CUE] under 38 C.F.R. § 3.105(a) concerning a final, unappealed [RO] decision may not be considered where the [BVA] has reviewed the entire record of the claim following subsequent reopening and has denied the benefits previ-ously [sic] denied in the unappealed decision.

G.C. Prec. 14-95 at 6.

Once the BVA has decided a claim, the Board’s decision is final and binding upon VA. See 38 U.S.C. §§ 7103(a) [sic]. When a claim is disallowed by the BVA, the claim may not thereafter be reopened and allowed, except upon receipt of new and material evidence, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). Exceptions to the finality of BVA decisions are very limited. The Chairman of the Board may order reconsideration under 38 U.S.C. § 7103(a), the Board on its own motion may correct an obvious error in the record under 38 U.S.C. § 7103(c), or, under 38 U.S.C. §§ 5108 and 7104(b), a previously-denied claim may be reopened upon submission or procurement of new and material evidence. Permitting review for CUE of a prior, unappealed [RO] decision, where the BVA has reviewed the matter upon reopening, would, as discussed below, tend to undermine the finality of BVA decisions established by the referenced statutes.

G.C. Prec. 14-95 at 3-4. After discussing what constituted new and material evidence to reopen a claim the opinion continued,

Where a BVA decision involves review of evidence considered in a prior, unappealed [RO] decision eon-eerning [sic] the same issues, consideration of a CUE claim regarding the prior [RO] decision would essentially permit review of an issue finally decided by the Board, in a manner not contemplated in the statutes governing finality of Board decisions. Such action would essentially allow a[n RO] to collaterally consider and overturn conclusions reached by the Board concerning the issues raised. This would give rise to the anomalous situation referred to by the Federal Circuit in Smith [35 F.3d at 1526] of an inferior tribunal reviewing the decisions of a superior one.

Further, such review would tend to conflict with 38 U.S.C. § 7104(b), in that it could be viewed as involving consideration and potential allowance of a claim on the same factual basis as a claim already denied by the Board. In considering the reopened claim, the Board would have had before it the same evidence considered by the [RO], together with whatever new evidence had been presented or developed in connection with reopening of the claim. While the factual basis considered by the Board would have been expanded and thus not have been identical to that previously considered by the [RO], the evidence subsequently considered by the [RO] upon review of allegations of CUE in the prior decision would be identical to evidence previously before the Board upon its review of the reopened claim. Thus, the claim of CUE would lack the new factual basis necessary to overcome the finality of the Board decision.

G.C. Prec. 14-95 at 4-5. The Board, by statute, is required to follow the precedential opinions of VA General Counsel; however, the Court is not. See 38 U.S.C. §§ 7261, 7104(c); see also Sabonis v. Brown, 6 Vet.App. 426, 429 (1994).

The Secretary asserts that because the conclusion reached by G.C. Prec. 14-95 is consistent with the plain meaning and application that the Federal Circuit established in Smith for 38 C.F.R. § 3.105(a), this Court should extend that holding to circumstances where a final unappealed rating decision is subsequently reopened and adjudicated on the merits by the BVA. Secretary’s Br. at 12-13. In the alternative, the Secretary maintains that if the Court is unwilling to extend the Smith holding to situations similar to this case, the Court should “exercise due deference” to G.C. Prec. 14 — 95. Id. at 13; see Smith, 35 F.3d at 1527.

We agree that G.C. Prec. 14-95 is consistent with the Smith decision as applied to the facts here. In this regard, the Court notes that the 1988 BVA decision made a de novo review and essentially reviewed the 1947 RO decision. Therefore, the Court finds that the 1947 RO decision was subsumed by the 1988 BVA decision and that the BVA was correct in denying the appellant’s claim for CUE as no CUE existed as a matter of law. See Sabonis, 6 Vet.App. at 430 (“[W]here the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law.”). As the Federal Circuit said in Smith and as set forth in the G.C. Prec. 14-95 opinion, an RO must not be placed in the anomalous position of reviewing the decision of the BVA a superior tribunal. Even assuming that a CUE claim is not precluded by Smith, supra, on the theory that the 1988 BVA decision did not limit its review to only the evidence before the RO in 1947, a determination by the Court of ’the existence of CUE since 1947 would of necessity mandate service connection to the present time. Such a determination would, in effect, overturn the 1988 BVA decision. The Court, however, is precluded from reviewing a BVA decision that is not the subject of this appeal. See 38 U.S.C. §§ 7252(a), 7266(a)(1).

III. CONCLUSION

For the reasons stated above, the BVA’s December 12, 1995, decision is AFFIRMED.