John T. King v. Eric K. Shinseki
26 Vet. App. 433
Vet. App.2014Background
- John T. King filed for VA disability in July 1972; a January 1973 RO decision granted service connection for schizophrenia with a 10% rating and became final (no appeal).
- Relevant medical records before the 1973 decision: a private psychologist Dr. Michael Rothburd (Aug. 1972) diagnosing chronic undifferentiated schizophrenia with significant functional impairments, and VA physician Dr. J.F. Ross (Sept. 1972) diagnosing schizophrenia, latent type, with observations suggesting some interpersonal functioning.
- King filed a motion in 2006 to revise the 1973 RO decision for clear and unmistakable error (CUE), arguing the RO failed to consider Dr. Rothburd’s report and that a higher rating would have resulted.
- The RO and Board denied revision; the Board’s 2010 decision was remanded in 2011 for a technical error, and a January 11, 2012 Board decision again denied revision.
- The Court reviewed whether the Board’s denial of CUE was arbitrary, capricious, an abuse of discretion, or unsupported by adequate reasons or bases, and affirmed the 2012 Board decision.
Issues
| Issue | King’s Argument | Secretary’s Argument | Held |
|---|---|---|---|
| Whether RO’s alleged failure to consider Dr. Rothburd’s 1972 report violated due process | King: RO didn’t consider the report, denying a fair adjudication under Cushman | Secretary: No evidence of altered/withheld record; Cushman not implicated; statutory remedies (CUE) suffice | Court: No due process violation; Cushman distinguishable and remedy exists via CUE/other procedures |
| Whether the 1973 RO decision is subject to revision for CUE because the RO didn’t consider Rothburd’s report | King: Silence in the 1973 decision shows the report was not considered and would have produced a higher rating | Secretary: Pre-1990 RO silence is not evidence of non-consideration; RO decisions are presumptively valid absent clear indication otherwise | Court: Silence alone insufficient; Bouton is distinguishable; not clear from the face of the 1973 decision that evidence wasn’t considered |
| Whether error (if any) was “undebatable” and would have “manifestly changed the outcome” | King: Inclusion of Rothburd’s findings would have made higher rating undebatable | Secretary: Even if considered, evidence was not so overwhelming that outcome would inevitably change | Court: King failed to show the error was undebatable or outcome-determinative; CUE standard not met |
| Whether VA’s duty to assist / adequacy of the 1973 VA exam can form CUE basis | King: VA exam lacked findings on industrial and social adaptability so rating was based on inadequate exam | Secretary: Duty-to-assist failures create incomplete records and cannot be the basis for CUE | Court: Agreed with Secretary; duty-to-assist breach cannot predicate CUE because it yields incomplete, not incorrect, record |
Key Cases Cited
- Russell v. Principi, 3 Vet.App. 310 (establishes elements for CUE and "manifestly changed the outcome" standard)
- Bustos v. West, 179 F.3d 1378 (Fed. Cir.) (adopts "manifestly changed the outcome" language for CUE)
- Hillyard v. Shinseki, 24 Vet.App. 343 (clarifies CUE is a motion/request distinct from a claim)
- Caffrey v. Brown, 6 Vet.App. 377 (duty-to-assist breach cannot form basis for CUE)
- Cook v. Principi, 318 F.3d 1334 (Fed. Cir.) (same: duty-to-assist and CUE limitations)
- Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir.) (due process requires fair adjudication; altered records can invalidate proceedings)
- Guillory v. Shinseki, 603 F.3d 981 (Fed. Cir.) (statutory/regulatory remedies can satisfy due process)
- Natali v. Principi, 375 F.3d 1375 (Fed. Cir.) (pre-1990 RO decisions need not include reasons or bases and are presumptively valid)