Carey v. McDonough

1

Yoko Carey, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee

No. 21-5558

United States Court of Appeals For Veterans Claims

March 16, 2023

Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.

Kenneth M. Carpenter, Esq. VA General Counsel (027)

Before MEREDITH, Judge.

MEMORANDUM DECISION

MEREDITH, JUDGE

The appellant, Yoko Carey, surviving spouse and substitute claimant for veteran Timothy M. Carey, through counsel appeals an April 23, 2021, Board of Veterans' Appeals (Board) decision that denied a motion to revise, on the basis of clear and unmistakable error (CUE), a July 1971 rating decision that explicitly denied service connection for an inadequate personality and implicitly denied service connection for a nervous condition. Record (R.) at 4-21. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm the Board's decision.

I. BACKGROUND

The veteran served on active duty in the U.S. Army from December 1965 to December 1968 and received, among other decorations, the Purple Heart. R. at 2824. In January 1971, he submitted a claim for disability compensation for a nervous condition and napalm burn residuals, and he noted on the application form that he received the Purple Heart for burns sustained in Vietnam. R. at 2736-39. He underwent an "NP Examination" by a neuropsychiatrist on February 26, 1971; the neuropsychiatrist diagnosed an inadequate personality. R. at 2724-25. On the same day, a VA clinical social worker completed a social survey and opined that the veteran had a personality disorder. R. at 2731-33.

VA subsequently issued a July 19, 1971, rating decision pertaining to service connection for "mult[iple] conditions," R. at 2632; the decision reflects that VA assigned five separate disability ratings for scars on different parts of the veteran's body and noted, under the heading "NSC VE," that an inadequate personality is a constitutional or developmental abnormality that is not a disability under the law, R. at 2634; see R. at 2632-34. In November 1971, the veteran submitted a statement in support of claim indicating that he "wish[ed] to appeal the decision of Aug[ust] 1971^[1] denying . . . a disability award for [his] nervous condition." R. at 2621. VA issued a Statement of the Case (SOC) the following month. R. at 2616-20. The SOC indicates that service connection for a nervous condition was not warranted because the veteran's service medical records do not show any complaints, diagnoses, or treatment for a neurotic or psychotic condition during service and that "the veteran's personality difficulty is considered a congenital or developmental abnormality and not a disability under VA regulations." R. at 2620. The veteran did not perfect an appeal.

Instead, in August 1975, his non-attorney representative informed VA, regarding the veteran's attempts "to establish continuity of evidence" for purposes of demonstrating entitlement to benefits for his nervous condition, that the veteran received in-patient and outpatient treatment at a VA hospital since 1968 and outpatient treatment at a VA clinic since January 1972. R. at 2584. The veteran's representative requested that VA obtain the treatment records for "evaluation purposes." Id. On December 22, 1975, VA informed the veteran and his representative that "[t]he evidence does not warrant any change in our previous determina[]tion that your nervous condition is considered to be constitution[]al or developmental in origin and not considered a disease or in[]jury by our laws and regulations." R. at 2560; see R. at 2561 (Dec. 12, 1975, confirmed rating decision).

The veteran, in October 1984, requested to reopen a claim for benefits for post-traumatic stress disorder (PTSD). R. at 2511. After he underwent a VA psychiatric evaluation at which he was diagnosed with chronic alcoholism, a history of polysubstance abuse, and passive-aggressive personality disorder, R. at 2485-88, in March 1985, VA denied benefits for (1) PTSD, based on the lack of a diagnosis, and (2) a passive-aggressive personality disorder because it is a constitutional or developmental abnormality, R. at 2479-82; see R. at 2476-77. The veteran did not appeal the March 1985 rating decision. However, a VA examiner diagnosed him with PTSD in April 1992, R. at 2423-28, and a VA regional office (RO) awarded benefits for PTSD with a 50% rating beginning October 28, 1991, 100% beginning January 6, 1992, and 50% from March 1, 1992, R. at 2345-48. The RO subsequently increased his PTSD rating to 70% and awarded a total disability rating based on individual unemployability, both from July 7, 2006. R. at 1686-88, 2096-101.

In September 2017, the veteran, through current counsel, filed a request for revision of the July 19, 1971, rating decision based on three allegations of CUE. R. at 1377-87. Of note, the veteran acknowledged that the 1971 decision "indicate[d], without discussion . . . that a constitutional or developmental abnormality, an inadequate personality, was not a disability under the law." R. at 1377. He maintained, however, that his August 1975 claim to reopen and VA's December 1975 rating decision, which continued VA's denial of benefits for a nervous condition, "confirms the VA's implicit denial of [his] 1971 claim for . . . compensation for a nervous condition in its July 19, 1971[,] rating decision." Id. As for the veteran's specific allegation of CUE, he first asserted that VA failed to afford him the combat presumption under 38 U.S.C. § 354(b) and that, if the presumption had been applied, "VA would have been required to presume that his reported nervous condition was incurred while on active duty." R. at 1379. Next, he maintained that the rating decision's reference to a constitutional or developmental disability reflects that VA applied § 3.303(c), but he argued that there was no factual basis in the record to conclude that an inadequate personality is a constitutional or developmental abnormality. R. at 1379-80. He asserted that VA clearly and unmistakably erred when it reached a medical conclusion instead of relying on independent medical evidence. R. at 1380 (citing Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998)). Finally, the veteran argued that VA incorrectly applied 38 C.F.R. § 3.303(a), and he contended that service connection may be warranted when a disability was coincident to service. R. at 1380-81. But for these errors, the veteran contended that VA would have been required to award benefits for his postservice psychiatric disability. R. at 1381.

The RO denied the veteran's motion to revise the July 1971 rating decision. R. at 935-45, 948-52. He disagreed with the decision and subsequently opted in to the Rapid Appeals Modernization Program and chose the higher-level review process. R. at 901, 919-22. In January 2019, the RO issued a higher-level review decision denying the veteran's request to revise the 1971 rating decision, and he appealed to the Board. R. at 593-608, 885-92. The veteran died on July 17, 2020, and VA subsequently granted the appellant's request for substitution. See R. at 2, 176-80.

On April 23, 2021, the Board issued the decision on appeal, finding that the July 1971 rating decision that denied benefits for an inadequate personality also implicitly denied benefits for a nervous condition and that the decision became final because the veteran did not perfect an appeal as to that decision. R. at 5, 9-10. The Board then found that the correct facts, as they were known at the time, were before the adjudicators and that the statutory and regulatory provisions were correctly applied. R. at 5, 15-19. Further, even assuming that the RO erred, the Board found that the outcome would not have been manifestly different. R. at 17-19. The Board thus denied the appellant's motion to revise the July 1971 rating decision. R. at 5-6, 19. This appeal followed.

II. ANALYSIS

The appellant argues that the Board's observation that the 1971 rating decision did not explicitly discuss entitlement to benefits for a nervous condition reasonably raised the issue of whether his claim for a nervous condition remains pending and unadjudicated. Appellant's Br. at 5-8. Alternatively, she contends that the Board misapplied the implicit denial rule, alleging that "[t]he Board ignored the absence from the record of VA's notice of its July 1971 rating decision." Id. at 5; see id. at 8-12. Last, the appellant avers that the Board misapplied 38 U.S.C. § 354(b) and 38 C.F.R. § 3.303(c). Id. at 5-6, 12-19. The Secretary disputes these contentions and urges the Court to affirm the Board's decision. Secretary's Br. at 5-19.

A. Law

A request to revise a final RO or Board decision based on CUE is a collateral attack on that decision. Disabled Am Veterans v. Gober, 234 F.3d 682, 698 (Fed. Cir. 2000). CUE is established when the following conditions are met First, either (1) the correct facts in the record were not before the adjudicator or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. Damrel v. Brown, 6 Vet.App. 242, 245 (1994). Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc); see Hillyard v. Shinseki, 24 Vet.App. 343, 349 (2011), aff'd, 695 F.3d 1257 (Fed. Cir. 2012). Finally, the commission of the alleged error...