Veteranclaims’s Blog

March 27, 2012

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.
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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

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