Single Judge Application, Castellano v. Shinseki, 25 Vet.App.146, 150-52 (2011), Relationship Between VA Regulations and M21-1 Provisions

Excerpt from decision below: "Provisions in VA's Manual M21-1 "dealing with PTSD are substantive rules that are 'the equivalent of [VA] [r]egulations.'" Cohen v. Brown, 10 Vet.App. 128, 139 (1997) (quoting Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (alteration in original)); see Castellano v. Shinseki, 25 Vet.App.146, 150-52 (2011) (discussing the relationship between VA regulations and M21-1 provisions); Patton v. West, 12 Vet.App. 272, 282 (1999) ("The [Board] cannot ignore provisions of the Manual M21-1 relating to PTSD that are favorable to a veteran when adjudicating that veteran's claim."). The provisions of the Manual M21-1 are "rendered moot" in favor of the PTSD regulations in the Code of Federal Regulations "except where the Manual M21-1 is more favorable to the claimant." Cohen at 139. "[T]o the extent that the Manual M21-1provisions are more favorable to the claimant than the C.F.R. regulatory provisions, they are for application." Id. ================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2653 YEMAYA J. SHIMEK, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, Yemaya J. Shimek, appeals through counsel a July 23, 2010, Board of Veterans' Appeals (Board) decision that found no clear and unmistakable error (CUE) in a June 1996 VA regional office (RO) rating decision that denied entitlement to service connection for post-traumatic stress disorder (PTSD). Record (R.) at 3-15. Both parties filed briefs, and Ms. Shimek filed a reply brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). A single judge may conduct this review because the outcome in this case is controlled by the Court's precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's July 23, 2010, decision and remand the matter for further adjudication consistent with this opinion. I. BACKGROUND Ms. Shimek served on active duty in the U.S. Army from January 1976 to April 1977. R. at 357. Service medical records (SMRs) show that she was treated for an assortment of maladies during service including nervousness, depression, nausea, anxiety, and sleeping problems. R. at 414-36. A March 1977 report of medical history noted frequent trouble sleeping, depression or excessive worry, nervous trouble, and a previous attempt at suicide. R. at 448. A March 1977 report of medical examination listed her psychiatric condition as normal. R. at 405. In January 1996, Ms. Shimek filed a claim for service connection for PTSD. R. at 352. Ms. Shimek submitted a statement to VA in which she identified the events or experiences she found most upsetting during service. R. at 324-28. This statement included, among many other incidents, her account of being raped by a female sergeant. Id. In March 1996, Ms. Shimek underwent a VA PTSD examination. R. at 331-33. The examiner reported that Ms. Shimek attributed her nightmares to "severe traumatic events that she experienced during the military." R. at 331. The examiner noted: Signs and symptoms compatible with mild to moderate form of [PTSD], as evidenced by severe insomnia, nightmares, and social isolation. This is apparently related to severe traumatic experiences in the military. Even though she has some symptoms of PTSD she has [a] psychological component that may[]be aggravating [her] symptoms as well as precluding [her] from getting any appropriate treatment. R. at 333. The RO, in a June 1996 rating decision, denied service connection for PTSD, reasoning that "[t]he evidence available for review does not establish that a stressful experience sufficient to cause [PTSD] actually occurred." R. at 317. In May 2006, Ms. Shimek requested that her claim for "PTSD sexual trauma" be reopened and argued that the June 1996 rating decision was a product of CUE. R. at 307. VA ordered an evaluation for PTSD and, in September 2006, Ms. Shimek underwent that examination. R. at 255-64. The examiner noted that the examination was only to consider the rape incident described by Ms. Shimek as a possible stressor for PTSD. The examiner noted that "[a] stressor identified on VA form 21-2507 dated August 28, 2006, sexual assault in the [U.S.] Army . . . is sufficient to cause [PTSD]" and opined that Ms. Shimek's "symptoms of [PTSD] are more likely than not related to her sexual assault in the [U.S.] Army." R. at 259. In an October 2006 rating decision, the RO granted service connection for PTSD with a disability rating of 70%, effective from May 21, 2006, and further determined that the June 1996 rating decision denying service connection for PTSD was not the product of CUE. R. at 229-37. The RO reviewed the stressor statement previously submitted by Ms. Shimek in context with her SMRs and concluded that her SMRs "contain'marker'evidence" thatsupportedherreported trauma. 2 R. at 231. The RO specifically noted the development during service of symptoms including nervousness, sleeplessness, anxiety, and depression before concluding: " Therefore, your reported sexual trauma is considered to be supported by the evidence of record." R. at 232. In the portion of the rating decision determining that the June 1996 rating decision was not a product of CUE, the RO concluded: "You have not provided anybasis for which to allege a CUE, therefore, a valid claim of a CUE is not properly identified." R. at 234. Ms. Shimek appealed that decision. In April 2009 the Board continued the denial of CUE in the 1996 rating decision. Following Ms. Shimek's appeal of that decision, the Court granted the parties' December 2009 joint motion for remand (JMR). R. at 33-38. In the JMR, the parties stipulated that the April 2009 Board erred in two respects. R. at 33. First, the Board did not provide an adequate statement of reasons or bases for its "finding that 'there was no nexus opinion relating the PTSD diagnosis to service'" and second, "when finding that the June 1996 rating decision did not containCUE,theBoardneglectedto discuss theapplicabilityofVAAdjudicationProcedureManual M21-1 (Manual M21-1), Part III, Paragraph 5.14c (Feb. 20, 1996), rendering its reasons and bases inadequate." R. at 35. Following the Court's December 2009 grant of the JMR, the Board issued the July 2010 decision currently on appeal. II. ANALYSIS The appellant argues that the Board erred in its determination that the June 1996 rating decision denying service connection for PTSD was not the product of CUE. Appellant's (App.) Brief (Br.) at 6-14. Specifically, she argues that the RO failed to apply or misapplied the law in existence at that time regarding PTSD stressor verification. Id. at 7-9; App. Reply Br. at 2-6. The Secretaryresponds that the appellant seeks an impermissible reweighing of the evidence before the RO in 1996 and that she has otherwise failed to meet the requirements of establishing CUE. Secretary's (Sec'y) Br. at 6-13. Generally, when a benefits claimant chooses not to, or otherwise fails to, appeal an RO or Board decision within the statutorily prescribed time period, that decision becomes final. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). An RO or Board decision that has become final may not be reversed or revised in the absence of CUE. See 38 U.S.C. §§ 5109A, 7111(a); 38 C.F.R. 3 § 3.105(a) (2011). 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 manifestlydifferent but for the error." 38 C.F.R. § 20. 1403(a) (2011). To establish CUE, the appellant must show: (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Grover v. West, 12 Vet.App. 109, 112 (1999); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). When reviewing Board decisions on CUE, the Court's review is generally " limited to determining whether the [Board] decision was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Russell, 3 Vet.App. at 315 (citing 38 U.S.C. § 7261(a)(3)(A)). However, the Court reviews de novo whether an applicable law or regulation was correctly applied. Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005). The Court also reviews whether the Board's decision is supported by an adequate statement of reasons or bases. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Revision based on CUE is appropriate if the statutory or regulatory provisions in effect at the time of the 1996 RO decision were incorrectly applied. 38 C.F.R. § 20.1403. Provisions in VA's Manual M21-1 "dealing with PTSD are substantive rules that are 'the equivalent of [VA] [r]egulations.'" Cohen v. Brown, 10 Vet.App. 128, 139 (1997) (quoting Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (alteration in original)); see Castellano v. Shinseki, 25 Vet.App.146, 150-52 (2011) (discussing the relationship between VA regulations and M21-1 provisions); Patton v. West, 12 Vet.App. 272, 282 (1999) ("The [Board] cannot ignore provisions of the Manual M21-1 relating to PTSD that are favorable to a veteran when adjudicating that veteran's claim."). The provisions of the Manual M21-1 are "rendered moot" in favor of the PTSD regulations in the Code of Federal Regulations "except where the Manual M21-1 is more favorable to the claimant." Cohen at 139. "[T]o the extent that the Manual M21-1provisions are more favorable to the claimant than the C.F.R. regulatory provisions, they are for application." Id. 4 The version of VA's Manual M21-1 in effect at the time of the 1996 RO decision—dated February 20, 1996—contained a provision for handling PTSD claims based on personal assault. A section of that provision, titled "PTSD Claims Based on Personal Assault," states in pertinent part: (1) Veteran's claiming service connection for disability due to an in- service personal assault face unique problems documenting their claims. . . . (2) Because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. . . . (3)Toserviceconnect PTSD, theremust becredibleevidence to support the veteran's assertion that the stressful event occurred. This does not mean that the evidence actually proves that the incident occurred, but rather that the preponderance of the evidence supports the conclusion that it occurred. ... (5) The service record may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. . . . (6) Identifying possible sources of alternative evidence will require that you ask the veteran for information concerning the incident. This should be done as compassionately as possible in order to avoid further traumatization. . . . ... (8) Rating board personnel must carefully evaluate all the evidence. If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in- service stressor. Examples of behavior changes that might indicate a stressor are ( but are not limited to): (a) Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; ... (e) Lay statements describing episodes of depression, panic attacks or anxiety but no identifiable reason for the episodes; 5 (9) Rating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. . . . Manual M21-1, Part III, Paragraph 5.14c (Feb. 20, 1996). The brief rationale provided in the RO's denial of service connection for PTSD in its 1996 decision reveals that the RO took the 1996 VA PTSD examiner's opinion into consideration but denied service connection based on the lack of a verifiable stressor. The RO noted that the VA examinerdiagnosedPTSD,but concludedthat: " Theevidenceavailableforreviewdoesnot establish that a stressful experience sufficient to cause [PTSD] actually occurred." R. at 317. The RO went on to state that: "This decision will be reconsidered upon receipt of more detailed information to allow for verification of military stressful events, especially the sexual assault." Id. In reviewing the 1996 RO decision for CUE, the 2010 Board acknowledged a PTSD diagnosis at that time and described the 1996 decision as follows: "The RO indicated that a verified stressor sufficient to cause PTSD was not established bythe evidence of record. The RO informed the Veteran that her decision would be reconsidered upon receipt of more detailed information to allow forverification of military stressful events especially the sexual assault." R. at 10, 12. In the December 2009 JMR, the parties agreed that the Board decision that was the subject of the JMR required remand based on the Board's failure to provide adequate reasons or bases. The parties stipulated the following: In the decision on appeal, the Board found that 'there was no nexus opinion relating the PTSD diagnosis to service.' []However, the Board did not reconcile this conclusion with the evidence of record at the time of the [RO's 1996] decision (i.e., the March 1996 VA examination), which demonstrated otherwise. R. at 36 (emphasis added). Despite the JMR stipulation that the evidence of record in 1996 demonstrated that there was a nexus opinion, the Board determined that the 1996 VA PTSD examiner "solely made a speculative statement, without review of the claims file, that the Veteran's PTSD was apparently related to severe traumatic experiences in the military." R. at 14. The 2010 Board decision discussed the Manual M21-1 provision quoted above as directed by the JMR and noted, "the evidence of record at the time of the June 1996 RO decision did include some evidence of visits to a counseling clinic during service as well as the [appellant's] statements as to nervousness and depression." R. at 14. Although the Board in 2010 did not explicitly state that 6 this evidence of a change in behavior around the time of the claimed sexual assault in service was sufficient to corroborate the stressor in 1996, this was part of the same record evidence that was sufficient to verifythe complained-of sexual assault as a stressor for the purposes of granting service connection for PTSD in 2006. R. at 231-32. In the 2006 rating decision granting service connection for PTSD, the RO noted that the appellant's SMRs contain "marker" evidence that serves to support your reported trauma. Specifically, the enlistment examination of December 1975 show[s] no evidence of any mental health complaints or disability. Starting in November 1976, nearly 11 months after enlistment, there are complaints of restlessness, nervousness, and sleepless nights. In January 1977 you were seen by Mental Health for anxiety and problems sleeping. At military discharge examination in March 1977 you further reported nerve[ s], frequenttroublesleeping,depression/or excessiveworry, andnervoustroubleofsort. The military examiner noted your multiple symptoms at discharge that were not present at enlistment but did not render any diagnosis or etiology of such. Review of all your VA claims folder provides no contradicting evidence. Therefore, your reported sexual trauma is considered to be supported by the evidence of record. R. at 231-32. It is clear that the appellant's changes in behavior were of record at the time of the 1996 RO decision and there would have been no contradicting evidence in the record at that time either. The December 2009 JMR also noted that the appellant's SMRs reflected " complaints of anxiety, nervousness, depression, and difficultysleeping." R. at 37. The parties stipulated that these "complaints may be of the type described in M21-1 as in effect in June 1996" and thus directed the Board to consider "whether the pertinent portions of M21-1 were properly applied." Id. The Court notes that, not onlywere the appellant's SMRs of record for consideration in concert with the Manual M21-1, but also of record in 1996 was the appellant's statement in which she detailed her account of the rape that she suffered during service. R. at 324-28. The statement contained the appellant's description of the in-service sexual assault that the RO would determine just two months later did "not establish that a stressful experience sufficient to cause [PTSD] actually occurred." R. at 317. Theappellant's April1996statement detailed the nameofherallegedattacker, theappellant's regular duty station where she said the attack took place, the general time during her period of service when the attack occurred, and further graphic detail. R. at 325. Rather than discussing any of the details provided by the appellant, the 1996 RO decision denied the appellant's PTSD claim noting, 7 This decisionwill bereconsidereduponreceiptof more detailed informationto allow for verification of military stressful events, especially the sexual assault. This information should show the names of those involved including witnesses, the dates of the incidents, the unit to which assigned at that time, and whether any investigation was done. R. at 317. In the 2006 Board decision granting service connection for PTSD, the Board determined that the same details provided by the appellant in her April 1996 statement along with her changes in behaviorweresufficient toestablishaverifiablestressorandgrantedthe appellant's claim forPTSD. R. at 231-32. Although the 2010 Board decision on appeal contains some discussion of the appellant's visits to a counseling clinic and her "statements as to nervousness and depression" that would be evident from her SMRs, the Board made no mention of the appellant's April 1996 statement detailing the name of her attacker and the place and time when it took place along with other graphic detail. The Board further failed to provide any discussion of whether the appellant's April 1996 statement along with the evidence of record in her SMRs and the lack of any contradictory evidence in the record would necessarily have established the alleged in-service rape as a stressor sufficiently verified under the proper application of Manual M21-1, Part III, paragraph 5.14(c) as it existed in June 1996. In attempting to explain why the RO in 2006 verified the appellant's stressor based on the same evidence that the RO in 1996 denied it, the Board stated that "it was not until May 2002, that 38 C.F.R. § 3.304(f)(3) set forth and codified specific examples of evidence of markers of personal assault." R. at 13; see R. at 10 (explaining that the RO's 2006 examination request form that informed the examiner that the stressor had been verified by "markers of personal assault" was "apparently based on a change of law, specifically the addition of 38 C.F.R. § 3.304(f)(3), effective May 7, 2002") (emphasis in original). However, the key issue that the Board failed to address is the fact that, in 1996, provision 5.14c of the Manual M21-1 instructed the RO to attempt to use alternative evidence to verify an in-service stressor and that those instructions and the alternative evidence listed are almost exactly the same as that found in 38 C.F.R. § 3.304(f)(3) in 2006. Compare Manual M21-1, 5.14c (quoted at length, above), with 38 C.F.R. § 3.304(f)(3) (2006) (now codified at 38 C.F.R. § 3.304(f)(5)). The Board stated that the "change in the law" in 2002 led to the 8 verification of the appellant's stressors, but Manual M21-1, 5.14c had the force of law in 1996 and the RO clearly failed to comment on it. See Cohen, supra. The Board also rejected that premise based upon its determination that the 1996 VA examiner's opinion was speculative. R. at 14. The 1996 VA examiner opined that the appellant's "mild to moderate form of [PTSD], as evidenced by severe insomnia, nightmares, and social isolation" were "apparently related to severe traumatic experiences in the military." R. at 333. The Board determined that this opinion was speculative because it "did not specifically relate the diagnosis of PTSD to a specific stressor (such as a rape in service)." R. at 14. The Board failed to further discuss how the examiner's opinion that the appellant's symptoms were "apparently related to severe traumatic experiences in the military" rendered it speculative. The Court is precluded from concluding that the 1996 RO decision was a result of CUE unless it is absolutely clear that the error would have resulted in a manifestlydifferent outcome. See Grover and Russell, both supra. The reasons or bases provided by the Board in the 2010 decision on appeal prevent the Court from reaching a determination on CUE. As the Board noted in 2010, the 1996 VAexaminer's opinion contained the conclusion that the appellant's "PTSD was apparently related to severe traumatic experiences in the military." R. at 14. The Board then stated the requirements for a successful service-connection claim for PTSD in 1996 and summarily concluded that the evidence of record in 1996 "clearly offered some support for the RO's point of view." Id. However, the Board's leap in logic makes its determination far from clear. It appears from the RO's brief analysis and the 2010 Board's characterization of the 1996 rating decision that the RO determined that there were no verifiable stressors of record without reaching a determination on nexus. The 2010 Board decision labeled the 1996 VA examiner's opinion speculative but fell short of making a clear determination, supported byan adequate statement of reasons or bases, on whether it could support a nexus between a verified stressor and the appellant's PTSD. R. at 14; see Livesay, 15 Vet.App. at 174. The Court's review of the1996 VA PTSD examination reveals that, although the examiner equivocated as to other potential causes of the appellant's symptoms, the examiner opined that the appellant's PTSD was "apparently related" to severe traumatic events in the military. R. at 333; see also R. at 256 (2006 examiner stating that the 1996 examiner "made the diagnosis of 9 [PTSD], mild, related to in-service stressors"). As noted above, the Board labeled this opinion speculative but failed to provide an adequate statement of reasons or bases as to whether this opinion could have provided the requisite nexus if the RO had applied the Manual M21-1 and verified the appellant's in-service stressor. On remand, the Board must readjudicate Ms. Shimek's appeal alleging CUE in the 1996 RO decision and provide an adequate statement of reasons or bases, which should expressly include a discussion of the following issues in addition to those already mentioned above. First, the Board must discuss the adequacy of the 1996 medical opinion, including whether the examiner reviewed the claims file and what effect, if any, a review or lack of review would have on his opinion. The Board should also discuss the sufficiency of the nexus opinion provided by that examiner. Next, the Board must discuss whether the RO in 1996 correctly applied provision 5. 14c of the Manual M21-1 and, if not, the effect of such an error on each of the three elements required to establish CUE. See Grover, supra. On remand, the appellant is free to submit additional evidence and raise her arguments to the Board, and the Board is required to consider them. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order). The Board and the RO must provide expeditious treatment of this matter on remand. See 38 U.S. C. §§ 5109B, 7112. III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's July 23, 2010, decision is VACATED and REMANDED for further adjudication in accordance with this decision. DATED: March 15, 2012 Copies to: Sandra W. Wischow, Esq. VA General Counsel (027) 10