Hudson v. Wilkie
| Decision Date | 29 October 2019 |
| Docket Number | 18-4850 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Princess Diane Hudson, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Thomas E. Andrews, III, Esq. VA General Counsel (027)
Before TOTH, Judge.
Princess Diane Hudson, the surviving spouse of veteran Donald J Hudson, was permitted by VA to be substituted for him as the claimant when he passed away. She appeals a Board decision that denied an effective date earlier than September 9, 2010 for the award of service connection for PTSD based on clear and unmistakable error (CUE). The Board concluded that the VA regional office (RO) did not commit CUE in a March 2011 decision by not applying 38 C.F.R. § 3.156(c) because VA had exhausted any duty under that regulation to "reconsider" the PTSD claim more than 20 years earlier. Under the deferential standards applicable in CUE appeals, the Court affirms the Board's conclusion. Moreover, the Court has no jurisdiction to consider a § 3.156(b) argument that Mrs. Hudson raised for the first time on appeal to the Board (and which the Board did not address) because she was required to raise such a distinct CUE argument before the RO.
Donald Hudson served in the Air Force from April 1971 to July 1974. He first sought disability compensation for PTSD in 1989, alleging various stressors suffered while he was stationed in Vietnam. The RO denied the claim in a July 1990 decision. It reviewed service medical records but found that, although "the veteran's history as he relates it [was] a convincing one," the absence of any indication in those records of service in Vietnam "rebut[ted] his contentions" and prevented them from being verified. R. at 2313. He disagreed with this decision. VA acknowledged in a Statement of the Case that a personnel record showed him present at Bien Hoa Air Base, Vietnam, in 1972, but it continued to deny the claim, finding that the evidence did not "confirm that he experienced stressful events [that] would support a diagnosis of PTSD." R. at 2304.
In March 1991, VA received a response to an earlier inquiry from the U.S. Army & Joint Services Environmental Support Group. The letter, accompanied by excerpts from a publication, Air Base Defense in the Republic of Vietnam 1961-1973, indicated that there were "attacks on Cam Ranh Bay and Bien Hoa Air Base during the time frame specified in Mr. Hudson's claim."[1] R. at 2292. The Court refers to these documents collectively as "the Air Force report."
VA issued a confirmed rating decision in June 1991, concluding that the Air Force report did not warrant a change in its earlier denial as it did not verify the veteran's alleged stressors. See R. at 2290. The letter notifying the veteran of the RO's decision advised that it once again "denied" his PTSD service-connected claim "because the U.S. Army and Joint Services Environmental Support Group was unable to verify your alleged stressors while stationed in the Republic of Vietnam." R. at 2289. The veteran took no action in response to this notice, save for an unsuccessful request to reopen filed in 2007.
Mr. Hudson filed a claim to reopen again in 2010. In a March 2011 decision, after obtaining a 2009 VA treatment record diagnosing PTSD and a favorable 2011 VA etiology opinion, the RO granted service connection for PTSD with a 50% rating, effective September 9, 2010. The effective date was the date VA received the claim to reopen entitlement to PTSD. A few months after this decision, the veteran's wife attempted to raise an issue with the PTSD award. VA promptly advised the veteran that Mrs. Hudson could not request VA action, as there was no record that she had his power of attorney. VA further advised that it would not take any action unless it received something from the veteran or from the American Legion, which at that time held his power of attorney.
More than four years passed before Mr. Hudson filed something. In a September 2015 submission, he asked for an increased PTSD rating and sought to revise two separate RO decisions on the basis of CUE. First, he argued that the July 1990 rating decision committed CUE because sufficient evidence was of record at that time to confirm a PTSD diagnosis, verify his presence in Vietnam and alleged stressors, and to link PTSD to these events, thereby satisfying the legal requirements for disability compensation. Second, he argued that the March 2011 rating decision committed CUE when it failed to apply § 3.156(c) and award him a 1989 PTSD effective date.
The RO assigned a 70% PTSD rating but rejected the veteran's CUE arguments for an earlier effective date. Mr. Hudson retained present counsel and filed a Notice of Disagreement. When VA continued its denial, the veteran appealed to the Board, asking for an earlier effective date "based either on CUE or on the application of 38 [C.F.R. §] 3.156." R. at 369 (emphasis added). A subsequent brief to the Board reiterated the earlier challenges to the 1990 and 2011 decisions and introduced a new argument under § 3.156(b), namely, that receipt of the Air Force report during the year following the July 1990 decision rendered that decision nonfinal and required a 1989 PTSD effective date.
Mr. Hudson died on March 22, 2018, while his appeal was pending. VA permitted his wife to be substituted as the claimant, and she continued to retain her husband's attorney.
In the decision on appeal, the Board denied a PTSD effective date prior to September 9, 2010. First, the Board rejected the argument that the evidence before the RO at the time of its July 1990 decision clearly and unmistakably proved service connection for PTSD. (Mrs. Hudson does not challenge this determination.) Second, the Board rejected the argument that the RO clearly and unmistakably erred in the March 2011 decision by not applying § 3.156(c). That provision, the Board determined, was inapplicable because the Air Force report was not a "service department record" triggering VA's duty under § 3.156(c)(1) to "reconsider" the PTSD claim. R. at 9. The Air Force report, the Board reasoned, was not a service medical record, a service personnel record, or a service unit record and it did not exist until several years after Mr. Hudson left service. Alternatively, even if the Air Force report qualified as a service department record requiring reconsideration under § 3.156(c), the Board determined that R. at 10. The Board did not address § 3.156(b). This appeal followed.
On appeal, Mrs. Hudson asserts that the Air Force report qualified as a service department record trigging the duty under § 3.156(c) to reconsider the veteran's claim and that this reconsideration-which if favorable to the veteran could provide an earlier effective date-never took place. She also argues that the Air Force report constituted new and material evidence submitted during the appeal period of the original RO decision denying PTSD and that, because a Supplemental Statement of the Case was never issued in response to it, the PTSD claim remained pending under § 3.156(b) ever since the veteran first filed it in 1989. With respect to both provisions, Mrs. Hudson contends that the Board erred by not applying them in the decision on appeal. This focus is misplaced. Before explaining why the Board didn't err in its § 3.156(c) analysis and wasn't permitted to undertake a § 3.156(b) analysis, the Court sets out the legal rules applicable in the CUE context and explains why the appellant's arguments must be assessed, if at all, under those CUE standards.
Generally, when "a veteran fails to appeal from an RO decision concerning a claim, the decision becomes 'final,' and 'the claim will not thereafter be reopened or allowed.'" Cook v. Principi, 318 F.3d 1334, 1336 (Fed. Cir. 2002) (en banc) (quoting 38 U.S.C. § 7105(c)). A veteran may, however, collaterally attack an otherwise final RO decision by filing a CUE motion to reverse or revise it. Id. at 1337; Hime v. McDonald, 28 Vet.App. 1, 6 (2016). To establish CUE, the veteran must show that: (1) the adjudicator either ignored the correct facts in the record or incorrectly applied statutes or regulations in effect at the time; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or the law was applied; and (3) the commission of the alleged error, at that time, would have manifestly changed the outcome of the decision sought to be revised or reversed. Hime, 28 Vet.App. at 6. The Court's review of a Board determination that there was no CUE in a prior final decision "is limited to determining whether the Board's finding was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" George v. Wilkie, 30 Vet.App. 364, 369 (2019) (quoting 38 U.S.C. § 7261(a)(3)(A)).
CUE is "a very specific and rare kind of error . . . 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." 38 C.F.R. § 3.105(a)(1)(i) (2019). As the Court has explained:
If it is not absolutely clear that a different result would have ensued, based upon the facts and law that were understood at the time of the decision, then any error that may have occurred in a final Board or RO decision is not clear and unmistakable....
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