Richardson v. Nicholson, 051706 uscavc, 03-2100

Docket Nº03-2100
Opinion JudgeThe opinion of the court was delivered by: Schoelen, Judge
AttorneyKenneth M. Carpenter, of Topeka, Kansas, was on the brief for the appellant.
Case DateMay 17, 2006




No. 03-2100


May 17, 2006

Kenneth M. Carpenter, of Topeka, Kansas, was on the brief for the appellant.

The opinion of the court was delivered by: Schoelen, Judge

The opinion of the court was delivered by: Schoelen, Judge [10] Before KASOLD, MOORMAN, and SCHOELEN, Judges. [11] SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Judge, and MOORMAN, Judge, filed concurring opinions. [12] The appellant, George T. Richardson, through counsel, appeals a September 5, 2003, Board of Veterans' Appeals (Board) decision denying his requests for revision of August 1944 and May 1946 VA regional office (RO) decisions on the basis of clear and unmistakable error (CUE). Record (R.) at 1-18. This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the following reasons, we will vacate the Board's determination that there was no CUE in the August 1944 RO decision and remand that matter, and we will affirm the Board's determination that there was no CUE in the May 1946 RO decision. [13] I. BACKGROUND [14] Mr. Richardson served on active duty in the U.S. Army from June to September 1935 and from September 1942 to July 1944. R. at 220, 261. Service medical records indicate treatment for various conditions. For example, he was seen by a doctor in July 1943 for weakness and fainting attacks and was diagnosed with carotid sinus syndrome.*fn1 R. at 57- 59. Additional service medical records indicate a diagnosis of sinusitis and carotid sinus syndrome. R. at 122. In January 1944, after spending five weeks in rehabilitation for his symptoms, Mr. Richardson was diagnosed with mild neurocirculatory asthenia.*fn2 R. at 96. A May 1944 hospital report notes that he had spent 11 of his 20 months in service in the hospital. R. at 134. The final diagnoses listed on the hospital report are carotid sinus syndrome, simple migraine*fn3 aggravated by psychological factors, and simple adult maladjustment*fn4 syndrome with psychosomatic manifestations. R. at 135. That report also notes that Mr. Richardson was seen by a neuropsychiatrist who "concurred in the opinion that we were not dealing with a psychoneurosis*fn5 in this instance." Id. At discharge, he was found to be unfit for further military service because of moderate right carotid sinus syndrome, which had its onset in July 1943 and was manifested by "syncope,*fn6 following pressure on the right side, and a history of dizziness and fainting." R. at 186. [15] In August 1944, Mr. Richardson, acting pro se, filed an application for VA benefits (Form 526), in which, in the blank after "Nature of disease or injury on account of which claim is made and the date each began," he described his injuries as follows: [16] Claimant had an attack of fever on 7-3-43. This was followed by 3 attacks of pneumonia. As a result[,] heart was affected and claimant has had migraine headaches since that time. Nerves in throat controlling heart have been injured and claimant is unable to have any strenuous physical activity. Claimant's nervous system has been affected until he is unable to concentrate for any period of time. [17] R. at 220-21. In August 1944, the RO granted service connection for right carotid sinus syndrome, rated 30% disabling, and for migraine, rated 20% disabling, for a combined rating of 40%. R. at 226. A VA medical examination, dated February 1946, listed only a diagnosis of "hypersensitive carotid sinus with carotid sinus syndrome." R. at 243. A March 1946 neuropsychiatric examination report noted that Mr. Richardson suffered from an inability to concentrate, dizziness, chills, and fever. R. at 245. The examiner stated that these symptoms were "secondary in most part to a carotid sinus syndrome," and diagnosed only carotid sinus syndrome. Id. In response to a request by the RO for a "proper neuropsychiatric diagnosis in this case," the VA examination reports were "reviewed with various examiners and [the] diagnosis of migraine [was] found to be in error." R. at 248, 252. In May 1946, the RO reclassified Mr. Richardson's disability as "hypersensitive carotid sinus with carotid sinus syndrome; associated with headaches, formerly diagnosed as migraine," and increased his disability rating for carotid sinus syndrome to 50%. R. at 254. His rating for migraine was reduced to 0%. Id. [18] In April 1959, Mr. Richardson was hospitalized for observation and examination for reevaluation purposes. R. at 264-65. In August 1959, the RO again reclassified his service-connected condition to be "psychoneurosis conversion type with headache & vasomotor instability, formerly diagnosed as migraine & hypersensitive carotid sinus," and his rating was reduced from 50% to 30%, effective October 3, 1959. R. at 264-66. No reference was made to his 0% rating for migraine. Id. [19] In March 1996, Mr. Richardson, through counsel, filed a request for revision of the August 1944 and August 1959 RO decisions on the basis of CUE. R. at 270-71. He specifically asserted that the RO should have considered whether he had psychoneurosis in its August 1944 decision, based on the 1944 application. R. at 271. In an October 1996 decision, the RO determined that it did not have jurisdiction to consider the CUE issues. R. at 289-90. In a September 2001 decision, the Board reviewed the two requests for revision on the basis of CUE arising from the August 1944 and August 1959 RO decisions and recognized a third allegation of CUE in the May 1946 decision, based on the reduction of Mr. Richardson's rating for migraine. R. at 358-60; 369-70. Pursuant to the holding in Brown v. West, the Board concluded that the RO did have original jurisdiction to consider CUE issues and remanded the matter to the RO. 203 F.3d 1378 (Fed. Cir. 2000) (holding that an intervening Board decision that does not decide an issue subject to a request for revision on the basis of CUE does not subsume prior RO decision so as to preclude RO's adjudication of the request for revision on the basis of CUE); R. at 360, 369. [20] In July 2002, the RO determined that no revision was warranted in the August 1944, May 1946, and August 1959 RO decisions. R. at 384-92. On September 5, 2003, the Board issued the decision now on appeal, which found no CUE in the August 1944 and May 1946 RO decisions. R. at 1-18. The Board also specifically held that Mr. Richardson did not have a pending, unadjudicated claim for psychoneurosis. R. at 11 ("Upon review of the claim, the closest the veteran comes to seeking service connection for psychoneurosis was to report that his 'nervous system has been affected until he is unable to concentrate for any period of time.' That statement does not rise to the level of a claim of entitlement to service connection for psychoneurosis, particularly in view of the May 1944 hospital summary that diagnosed simple adult maladjustment, and his attorney does not contend that it does."). With regard to the August 1959 RO decision, the Board found that the decision was inadequate because it did not list service connection for migraine on the decision, nor did it propose or indicate severance of service connection for migraine. R. at 2. Thus, the Board held that the August 1959 RO decision was not final and was not subject to CUE attack. R. at 3. The Board referred that matter to the RO and it is not presently before the Court. Id. [21] II. ANALYSIS [22] A prior final RO decision must be reversed or revised where evidence establishes clear and unmistakable error. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (2005). CUE is established when the following conditions are met: First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See 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). Finally, the error must have "manifestly changed the outcome" of the prior decision. Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting "manifestly changed the outcome" language in Russell, supra). When the Court reviews a determination that there was no CUE in a prior final decision, the Court's review is limited to determining whether the Board's conclusion in that regard is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and whether it is supported by an adequate "statement of reasons or bases." 38 U.S.C. §§ 7261(a)(3)(A), 7104(d)(1); see Eddy v. Brown, 9 Vet.App. 52, 57 (1996). [23] A. Clear and Unmistakable Error in the August 1944 Decision [24] The Board determined that the alleged failure by the RO to adjudicate a claim for psychoneurosis could not be raised in the context of a request for revision on the basis of CUE because only final decisions are subject to revision for CUE. R. at 10-11; see 38 C.F.R. § 3.105(a). The Board stated that the failure to recognize the existence of a pending claim is not a final decision subject to collateral attack in a request for revision on the basis of CUE, relying on our holding in Norris v. West, 12 Vet.App. 413, 422 (1999) (determining that a claim reasonably raised to the RO was not adjudicated and holding that unadjudicated matters were not final for purposes of CUE attack). R. at 10-11. Thus, the Board held that the 1944 RO's failure to adjudicate a claim for psychoneurosis reasonably raised in 1944 cannot be CUE because...

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