Caffrey v. BrownCaffrey v. Brown
Lead Opinion
MANKIN, Judgе, filed the opinion of the Court, in which KRAMER, Judge, joined, concurring.
STEINBERG, Judge, filed an opinion concurring in part and dissenting in part.
Thomas A. Caffrey (appellant) appeals an October 9, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to an increased rating and an earlier effective date for chrome undifferentiated schizophrenia, currently rated at 50% disabling. The appellant claims that the BVA erred in determining that the severity of his condition had not increased, and that the Board failed to address his entitlement to a higher rating due to individual unemploya-bility. The appellant further contends that the Board erred in determining that he was not entitled to an earliеr effective date for service connection, because prior determinations were the result of clear and unmistakable error (CUE), based upon the VA’s failure to obtain private medical records requested by the appellant.
The Court finds that because the Board failed to conduct a contemporaneous examination of the appellant and assess evidence presented by him, it did not appropriately determine whether the appellant’s condition had become more severe. Further, although the appellant raised the issue of entitlement to an increased rating due to individual un-employability, the Board failed to address that clаim. Last, while the appellant has raised the issue of CUE in prior determinations, the issue is not applicable here because CUE claims cannot be based upon a failure in the duty to assist. Accordingly, the Court vacates in part and affirms in part the Board’s October 9, 1990 decision, and remands the matter in part.
I. Factual Background
The appellant served in the United States Army from November 24, 1958 to February 15, 1962. In March 1964, he submitted an application for compensation or pension seek
The appellant attempted to reopen his claim on June 3, 1976, and referred to treatment he had undergone at the Institute, Pennsylvania Hospital [hereinafter Institute], in March 1962. Evidence of that treatment was not submitted by the appellant and his claim was denied on August 8, 1975. The appellant again attempted to reopen his claim for service connection in December 1977 and May 1978. The RO denied his claim, and informed the appellant that new and material evidence was required to reopen a previous and finally disallowed claim. In June 1979 the appellant again attempted to reopеn his claim, but again reopening was denied due to the lack of new and material evidence.
On March 24,1988, the appellant reopened his claim, and in an August 22, 1988, letter asserted that a “crucial” report of hospitalization at the Institute for the period from February 27, 1962, to May 31, 1962, was not in his VA files. The appellant stated that he had authorized the hospital to send the report to the VA, and that the report proved the appellant was admitted one week after his discharge from service. On October 11, 1988, the RO found that the report and the other evidence of record established a new factual basis warranting a grant of service connection for chronic undifferentiated sсhizophrenia. The RO assigned a 10% rating, effective March 24,1988, and ordered an examination to determine the current severity of the appellant’s condition.
The examination was conducted on November 28, 1988, by George Anghel, M.D. Dr. Anghel noted that the appellant last worked in 1976 with the exception of a part-time job for one month in 1985. The doctor found that reasoning and judgment were not grossly impaired and attention, orientation, memory, and intelligence were normal. He further found the appellant’s social and industrial impairment to be “moderately severe.” Based upon this medical examination, the RO issued a decision on January 9,1989, increasing the rating for chronic undifferentiated schizоphrenia to 50% disabling, with an effective date of March 24, 1988.
In August 1989 the appellant filed a Notice of Disagreement (NOD) with the January 1989 RO decision, stating that his disability was 100% disabling and that his award should have an effective date prior to April 1, 1988. In his NOD, the appellant stated that an earlier effective date was warranted because he had informed the VA about his hospitalization at the Institute, and that he did not discover until sometime in 1988 that the medical records had not been forwarded. The appellant also claimed entitlement to an increased rating due to the severity of his condition and individual unemployability. With the appellant’s substantive appeal to the BVA in October 1989, he submitted a Septembеr 1989 letter from William Wood-worth, the appellant’s rehabilitation counsel- or from July 1987 to January 1988. Mr. Woodworth stated that the appellant was then substantially industrially impaired and unable to function vocationally. Mr. Wood-worth also stated that although counseling and college training were provided to the appellant, he was unable to continue with the program because his service-connected psychiatric disability had “flared up.”
The appellant also submitted a report of an evaluation conducted in December 1989 by Robert O’Toole, M.D., which stated that the appellant “is substantially impaired for entrance into the competitive labor market.” The RO reviewed the new evidence submitted by the appellant, and in December 1990 confirmed the existing rating and effective date. The Board denied entitlement to an increased rating and an earlier effective date, and the present appeal followed.
II. Analysis
A. Claim for Increased Rating
The appellant contends that the BVA erred in finding that a disability rating for chronic undifferentiated schizophrenia above 50% is not warranted. The appellant’s contention has two elements. First, the appellant argues he is entitled to an increased
The VA has a duty to assist a veteran who submits a well-grounded claim.
In determining that the appellant was not entitled to an increased rating, the Board applied the appropriate rating codes for schizophrenia.
The BVA supported its determination that the appellant could be rated as only 50% disabled,
VA regulations specifically require the performance of a new medical examination in instances such as the present case. “Reexaminations ... will be requested whenever VA determines there is a need to verify ... the current severity of a disability.”
The appellant also asserts that the Board erred in failing to assess his entitlement to a higher, including total, disability
While the appellant’s request for an increased rating due to individual unemploya-bility is apparent from all of the appellant’s pleadings, the Board failed to address this claim and the supporting evidence in its October 9, 1990, decision. This Court has held that where the Board has failed to adjudicate a claim which is reasonably raised by a liberal reading of the claimant’s pleadings, the Board has committed error. Fanning v. Brown,
Finally,
B. Entitlement to Earlier Effective Date
The appellant claims the Board erred in finding that he is not entitled to an earlier effective date for the service connection of his undifferentiated schizophrenia. The Board based its decisiоn on the finding that the June 1964 RO denial was a final decision, and that the appropriate effective date for the appellant’s present service connection was the date the reopened claim was received following the final disallowance.
As an initial matter, we must determine whether the appellant has properly pleaded CUE by specifying what the alleged error is, and by alleging why, if the purported CUE had not been made, the result would have been different. See Fugo v. Brown,
Where the VA notifies a claimant of the need for further evidence and the claimant fails to respond within one year of that notice, the claim is deemed to have been abandoned.... [Individuals applying for benefits have a responsibility to cooperate with the agency in the gathering of evidence necessary to establish allowance of benefits.
Morris v. Derwinski,
This Court has held that a claimant does not always need to make a specific request that the VA procure private medical records. Ivey v. Derwinski,
In the case of Porter v. Brown,
In this case, the VA’s failure to assist the appellant obtain private medical records was prior to the oсcurrence of the disputed adjudication. The VA’s failure resulted in the creation of an incomplete rather than incorrect record. We have held that “[a] determination that there was a ‘clear and unmistakable error’ must be based on the record and law that existed at the time of the prior ... decision.” Russell v. Principi,
While it is true that an incomplete record may ultimately lead to an incorrect determination, it cannot be said that an incomplete record is also an incorrect record. If the facts contained in the record are correct, it is not erroneous, although not embodying all of the relevant facts. Rather, an incomplete record is just that — incomplete. It allows for further development of facts and law to advance the veteran’s claim. “New or recently developed facts or changes in the law subsequent to the original adjudication may provide grounds for reopening a case or for a de novo review but they do not provide a basis for revising a finally decided case.” Id. at 313. Thus, an incomplete record, factually correct in all other respects, is not clearly and unmistakably erroneous. This is true even in the present case where the
III. Conclusion
Upon consideration of the record, the appellant’s informal brief, and the Secretary’s motion, the October 9, 1990, decision of the Board of Veterans’ Appeals is affirmed in part, and vacated in part, and the matter is remanded in part for further proceedings consistent with this opinion.
Concurrence in Part
concurring in part and dissenting in part:
I concur in the opinion of the Court except for part II.B and its holding that a “breach of
A. Duty to Assist
Before concluding that the duty to assist in this case was violated by the Veterans’ Administration (now Department of Veterans Affairs) (VA or Department) Regional Office (RO) in 1975, 1978, or 1979, it must first be determined whether such a duty to assist then existed. The current statutory duty to assist in
In concluding that the VARO in 1979 did not err in not obtaining the March 1962 Institute report, the Board of Veterans’ Appeals (BVA or Board) stated: “It is the responsibility of the claimant to provide reports of all private medicаl treatment pertinent to his claim.” Thomas A. Caffrey, BVA 90-_(Oct. 9, 1990), at 4. That statement is clearly wrong as a matter of law as to today’s duty to assist under Littke v. Derwinski,
According to the 1989 Statement of the Case, in 1975, 1978, and 1979 the RO informed the veteran in general terms that he needed to submit new and material evidence. R. at 106-07. Perhaps that was enough — at least up to 1979, but the record does not show what specific responses the RO gave at any of those times. Hence, I would hold that the duty to assist as described above might have been violated here and, if it was, then I would hold further, for the reasons set forth in part B, below, that that error constituted CUE. Accordingly, I would remand for the Board to readjudicate the CUE claim in light of the full record, which is not available to the Court.
B. CUE
More fundamentally, I differ from the majority’s holding that a CUE claim may never be premised on a duty-to-assist violation. I would tend to agree that such a violation could rarely meet the CUE prerequisite that the error must be one “which had it not been made, would have manifestly changed the outcome at the time it was made.” Russell v. Principi,
For the following reasons, however, I do not agree with the majority that even if a failure to assist is demonstrated as to the RO’s actions or inactions in 1975, 1978, or 1979 (or more than one of those years), that is a type of error which cannot constitute CUE under
Hence, the Court’s tautological distinction between an incomplete and an incorrect record seems manifestly at variance with a fundamental precept of Russell. Surely, it can just as reasonably be said that a record which causes the adjudicator to deny a claim when the “correct facts” would manifestly have produced the opposite result was an “incorrect” record and not just an “incomplete” one. In any event, I find nothing in Russell to warrant the incorrecVincomplete-record distinction which the majority attempts to make.
Moreover, the majority has taken a quotation out of context from Russell. Ante at 383-84. The majority relied on the third sentence in the following quotation without any reference to the first two sentences:
The short answer is that the claim which is reversed or amended due to a “clear and unmistakable error” is not being reopened. It is being revised to conform to the “true” state of the facts or the law that existed at the time of the original adjudication. New or recently developed facts or changes in the law subsequent to the original adjudication may provide grounds for reopening a case or for a de novo review but they do not provide a basis for rеvising a finally decided case.
Russell,
I concede that there is some language in Russell that could form a basis for the majority’s conclusion here. That is the statement that a CUE determination “must be based on the record and the law that existed at the time of the рrior [RO] or BVA decision.” Id. at 314. That particular phrase in the Russell opinion, however, seems to have been focusing on the kind of example it went on to give of an error which could not be CUE — “a new medical diagnosis that ‘corrects’ an earlier diagnosis ruled on by previous adjudicators.... ” Russell,
Moreover, the Russell language “record ... that existed at the ’ time” is not the equivalent of the majority’s paraphrase “record at the time of the prior determination”. Ante at 383-84. The Russell reference to “the record” must be read in the context of this Court’s decisions expanding what consti
C. Response to Concurring Opinion’s Reliance on Damrel Opinion
In his concurring opinion, Judge Kramer asserts that his opinion for the Court in Damrel v. Brown,
Moreover, the Damrel opinion, in synthesizing a third Russell prong, reiterated the exact language of Russell that a CUE determination “must be based on the record and the law that existed at the time of the prior” adjudication. Id. at 245; Russell,
Finally, I want to stress again, as I did at the outset of part B., that the CUE prerequisite of manifestly changing the outcome could rarely be met where the CUE asserted is a duty-to-assist failure. Only where it is indisputable that compliancе with the duty to assist would have changed the outcome of the prior merits adjudication would such a CUE claim even have to be considered. Making such an outcome-determinative judgment would not involve the speculation suggested, by the concurring opinion, but, rather, would eliminate the need even to consider such a CUE assertion (was there a violation of the duty to assist as it existed, if it did, at the time?) in the vast majority of instances in which a duty-to-assist CUE claim might be raised. As to the concurrence’s Chicken-Little cry that a Frankenstein’s monster of “newly created evidence” that “bears a date prior to that of the [old] adjudication” and “that purports to be outcome determinative” will stalk our CUE jurisprudеnce, it would be well to remember that the sky never did fall and to leave consideration of any such factors to the elected policy-making branches of government.
For the above reasons, I would remand the appellant’s properly raised CUE claim for readjudication by the BVA on the basis of the above analysis.
Notes
. The majority holds that VA's duty to assist was breached but does not specify when that breach occurred. Ante at 383.
Concurrence Opinion
concurring:
I write separately in response to part B of the dissent. Whatever ambiguity may have existed after the issuance of Russell v. Principal,
(1) “[ejither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.
Damrel,
The reports of treatment at the Institute, Pennsylvania Hospital, were not in the record at the time of all adjudications between June 1975 and March 1988, in which appellant alleges CUE. The language of prong (3) certainly eliminates any aspirations that the dissent may have in trying to reconstruct a record that did not exist at the time of the prior adjudications. This language, for all intents and purposes, is taken verbatim from the language'of Russell, supra, at 314, which states that “[a] determination that there was a ‘clear and unmistakable error’ must be based on the record and the law that existed at the time of the prior [agency of original jurisdiction] or BVA decision.” To the extent that the dissent hints that there may be “wiggle room” for going outside the record because of prong (1) (correct facts known at the time, but not before the adjudicator), such a reading would necessitate the existence of an inconsistency between prongs (1) and (3) in order to obtain the dissent’s hoped for, but unsustainable result. The case law of this Court clearly indicates that constructive receipt applies only to VA records. See Bell v. Derwinski,