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December 25, 2021

Single Judge Application; Giles v. McDonough, 987 F.3d 1370, 1374-75 (Fed. Cir. 2021) (rejecting an argument that distinctly diagnosed conditions should be construed as the “same chronic disease” merely because they are encompassed under the umbrella category of “psychoses” under § 3.303(b) and holding that whether two diagnosed psychoses are the same chronic disease is a factual question to be resolved by the Board). Because “appellate tribunals are not appropriate fora for initial fact finding,” Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000),;

Filed under: Uncategorized — veteranclaims @ 11:42 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-2329
AARON M. COHEN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Aaron M. Cohen appeals through counsel a March 18,
2019, Board of Veterans’ Appeals (Board) decision that found that an October 2003 VA regional
office (RO) decision denying service connection for an acquired psychiatric disorder, variously
diagnosed as bipolar disorder, schizoaffective disorder, and schizophrenia, did not contain clear
and unmistakable error (CUE). Record (R.) at 5-25.1,2 For the reasons that follow, the Court will
set aside the March 2019 Board decision and remand the matter for readjudication consistent with
this decision.
1 On May 28, 2020, the Court sua sponte stayed proceedings in this appeal pending issuance of mandate in
George v. Wilkie, 30 Vet.App. 364 (2019), which was appealed to the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit), or until further order of the Court. Through this decision, the Court will lift the stay of proceedings.
2 In the same decision, the Board reopened and granted the claim for service connection for an acquired
psychiatric disorder. Because those determinations are favorable to Mr. Cohen, the Court will not disturb them. See
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable
to a claimant made by the Board pursuant to its statutory authority.”), aff’d in part, dismissed in part sub nom. Medrano
v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009). In addition, the Board denied service connection for a right ankle
disorder and tinnitus, declined to reopen previously denied claims for service connection for neck pain and headaches,
and denied a higher disability evaluation for gastroesophageal reflux disease. R. at 5. Because Mr. Cohen has not
challenged these portions of the Board decision, the appeal as to those issues will be dismissed. See Pederson v.
McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review the merits of an issue not argued and
dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same).
2
I. FACTS
Mr. Cohen served honorably in the U.S. Army from June 2001 to June 2002. R. at 2093.
The March 2001 service entrance examination report reflected no psychiatric diseases or
diagnoses. R. at 2032-33.
In January 2002, Mr. Cohen was hospitalized for 10 days due to psychiatric symptoms and
was diagnosed with schizoaffective disorder, depressive type. At that time, he reported a history
of outpatient psychiatric treatment prior to service, which included treatment, at various times,
with lithium, Zoloft, Zyprexa, Risperidone, and Depakote. Following the hospitalization, Mr.
Cohen’s treating psychiatrist recommended that Mr. Cohen be referred to the Medical Evaluation
Board (MEB) for possible discharge from service. See R. at 2045-50.
In February 2002, Dr. Payne, Chief of Inpatient Psychiatry Service, indicated that Mr.
Cohen’s condition existed prior to service, indicated that the approximate date of onset was January
1996, and recommended that Mr. Cohen be referred to the Physical Evaluation Board (PEB) for
possible discharge. R. at 2045, 2050; see R. at 2043-44 (March 2002 Certificate of Psychiatric
Evaluation). Later than month, the MEB approved Dr. Payne’s recommendation. R. at 2040-41. In
April 2002, the PEB agreed, noting that “[t]here is compelling evidence to support a finding that
the [schizoaffective disorder] existed prior to service . . . and was not permanently aggravated by
such service.” R. at 2039.
In June 2002, Mr. Cohen filed claims for service connection for bipolar manic depression
and schizoaffective disorder. R. at 3151-64. At that time, he stated: “Both my disabilities were
discovered and exacerbated during my term of service. . . . I did not know about my present
condition prior to the military. Being in the military aggravated my present condition.” R. at 3157.
Upon VA examination in February 2003, Mr. Cohen described experiencing a “psychotic
episode” during service and reported that he was first prescribed an antipsychotic medication
during this episode. R. at 3113-14. The examiner diagnosed schizophrenia, undifferentiated type,
and opined that Mr. Cohen experienced a “psychotic break” while in the military. R. at 3115.
In March 2003, the RO denied service connection for an acquired psychiatric disorder,
finding that the evidence demonstrated that Mr. Cohen’s condition existed prior to service and that
there was no evidence that the condition was permanently worsened by service. R. at 3109-11. The
3
RO referenced service medical records and the MEB proceedings, recounting Mr. Cohen’s preservice
outpatient treatment and medication regimen. R. at 3111. Mr. Cohen did not appeal the
March 2003 RO decision.
Following several unsuccessful attempts to reopen the claim, Mr. Cohen again sought to
reopen the claim in March 2013. R. at 2214. In December 2013, the RO reopened the claim, but
again denied the claim on the merits. R. at 2108-11. In June 2014, the RO declined to reopen the
claim. R. at 1856-60. In October 2014, Mr. Cohen filed a Notice of Disagreement (NOD). R. at

  1. As discussed above, supra n.2, the Board ultimately reopened and granted the claim for
    service connection for an acquired psychiatric disorder. R. at 15, 18-20.
    In July 2015, Mr. Cohen filed, through counsel, a motion alleging CUE in the March 2003
    RO decision. R. at 1149-56. At that time, he asserted, in relevant part, that the RO failed to
    correctly apply 38 U.S.C. § 1111, arguing that the RO failed to rebut the presumption of soundness
    with clear and unmistakable evidence. Id.
    In July 2017, the RO denied the CUE motion. R. at 165-67. In September 2017, Mr. Cohen
    filed an NOD, R. at 139-43, and later timely perfected an appeal to the Board, R. at 53-59; see R.
    at 72-118 (March 2018 Statement of the Case).
    In the March 2019 decision on appeal, the Board found that the March 2003 RO decision
    did not contain CUE. The Board found that, although the March 2003 RO decision did not discuss
    the relevant statutory or regulatory provisions regarding the presumption of soundness, Mr. Cohen
    had not demonstrated that any misapplication would have resulted in a manifestly different
    outcome. R. at 11-13. This appeal followed.
    II. JURISDICTION AND STANDARD OF REVIEW
    Mr. Cohen’s appeal is timely and the Court has jurisdiction to review the March 2019 Board
    decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate.
    See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
    When a prior final RO decision contains CUE, that decision may be reversed or revised,
    resulting in correction of the error effective the date of its commission. 38 U.S.C. § 5109A; see
    Simmons v. Wilkie, 30 Vet.App. 267, 274-75 (2018), aff’d 964 F.3d 1381 (Fed. Cir. 2020); DiCarlo
    v. Nicholson, 20 Vet.App. 52, 54-58 (2006); 38 C.F.R. § 3.105 (2021). “CUE is a very specific
    4
    and rare kind of ‘error’ . . . of fact or law, 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 manifestly different but for the error.” Fugo v. Brown, 6 Vet.App. 40, 43 (1993). “[I]f it is
    not absolutely clear that a different result would have ensued,” based upon the facts and law that
    were understood at the time of the decision, then any error that may have occurred in a final Board
    or RO decision is not clear and unmistakable. Id. at 44.
    CUE is established when the following conditions are met: (1) Either the correct facts as
    they were known at the time were not before the adjudicator, the adjudicator made an erroneous
    factual finding, or the statutory or regulatory provisions extant at the time were incorrectly applied;
    (2) the alleged error is “undebatable,” not merely a “disagreement as to how the facts were weighed
    or evaluated”; and (3) the error “manifestly changed the outcome” of the prior decision. Russell v.
    Principi, 3 Vet.App. 310, 313-14, 319 (1992) (en banc); see King v. Shinseki, 26 Vet.App. 433,
    439 (2014); Bouton v. Peake, 23 Vet.App. 70, 71-72 (2008); Damrel v. Brown, 6 Vet.App. 242,
    245 (1994); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999).
    The Court’s review of a Board decision finding no CUE in a prior, final RO decision is
    limited to determining whether the Board’s finding was “arbitrary, capricious, an abuse of
    discretion, or otherwise not in accordance with law,” 38 U.S.C. § 7261(a)(3)(A), and whether it
    was supported by adequate reasons or bases, 38 U.S.C. § 7104(d)(1). See Cacciola, 27 Vet.App.
    at 59; Eddy v. Brown, 9 Vet.App. 52, 57 (1996). However, “the Court cannot conduct a plenary
    review of the merits of the original decision.” Andrews v. Principi, 18 Vet.App. 177, 181 (2004),
    aff’d sub nom. Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); see Archer v. Principi,
    3 Vet.App. 433, 437 (1992).
    To be adequate, the Board’s reasons or bases must enable a claimant to understand the
    precise basis for the Board’s decision and facilitate review in this Court. See 38 U.S.C.
    § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). The Board must also analyze the
    credibility and probative value of evidence, account for evidence that it finds to be persuasive or
    unpersuasive, and provide the reasons for its rejection of material evidence favorable to the
    claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
    1996) (table).
    5
    III. ANALYSIS
    In its decision, the Board found that, because evidence of a psychiatric disorder was not
    noted upon Mr. Cohen’s entry to service, the presumption of soundness applied. R. at 10. A veteran
    is presumed to be in sound condition except for defects, infirmities, or disorders noted when the
    veteran is examined, accepted, and enrolled for service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)
    (2021). “Therefore, when no preexisting medical condition is noted upon entry into service, a
    veteran is presumed to have been sound in every respect.” Horn v. Shinseki, 25 Vet.App. 231, 234
    (2012); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
    In such a situation, under current law, VA bears the burden to rebut the presumption of
    soundness by clear and unmistakable evidence that an injury or disease manifesting in service both
    (1) preexisted service and (2) was not aggravated by service. Wagner, 370 F.3d at 1096; Horn,
    25 Vet.App. at 234. However, as the Board stated, in March 2003 rebuttal of the presumption of
    soundness required clear and unmistakable evidence only as to the first prong—that the disease
    preexisted service. R. at 10-11 (citing 38 C.F.R. § 3.304(b) (1977); VA Gen. Coun. Prec. 3-2003
    (Jul. 16, 2003); Presumption of Sound Condition: Aggravation of a Disability by Active Service,
    70 Fed. Reg. 23027 (May 4, 2005) (amending § 3.304(b) to require rebuttal of both prongs)). The
    Board also noted that the Federal Circuit’s 2004 decision in Wagner—which invalidated the prior
    version of § 3.304(b)—did not apply retroactively. R. at 11 (citing George, 30 Vet.App. at 373).
    The Board acknowledged that the March 2003 RO decision did not discuss section 1111
    or § 3.304(b) or explain its finding of clear and unmistakable evidence of a preexisting condition.
    Id. However, the Board concluded that Mr. Cohen “has not demonstrated that the outcome would
    have been manifestly different had the [RO] properly applied the presumption of soundness.” Id.
    It is not clear to the Court whether the Board was acknowledging that the RO did not apply the
    presumption of soundness or that the RO merely did not “show its work” by explicitly stating its
    presumption-of-soundness analysis. Regardless, it is clear that the Board concluded that, if the RO
    had explicitly considered the presumption of soundness, the RO would have concluded that the
    presumption would have been rebutted. See R. at 12-13. Going further, the Board concluded that
    the presumptive service-connection provisions relevant to certain chronic diseases including
    psychoses—38 C.F.R. §§ 3.303(b), 3.309(a)—would not have applied to Mr. Cohen’s preexisting
    condition. R. at 13-14.
    6
    On appeal, Mr. Cohen argues that the Board’s conclusion was arbitrary, capricious, an
    abuse of discretion, or otherwise not in accordance with law. Appellant’s Brief (Br.) at 12-17.3 He
    urges the Court to reverse the Board’s finding or, at a minimum, conclude that the Board provided
    inadequate reasons or bases for its adverse decision. Id. at 24-26. The Secretary urges the Court to
    affirm the Board decision, arguing that the Board provided a satisfactory explanation that any
    errors in the March 2003 RO decision would not have manifestly changed the outcome of that
    decision. Secretary’s Br. at 13-18.
    The Court concludes that the Board did not support its decision with adequate reasons or
    bases. In its decision, the Board found that “reasonable minds could differ as to whether the
    evidence of record at the time of the March 2003 rating decision could constitute clear and
    unmistakable evidence” of preexistence. R. at 12. However, this finding is not consistent with its
    conclusion that any error by the RO in properly applying the presumption would not have
    manifestly changed the outcome because the presumption would have been rebutted. If the Board
    concluded that reasonable minds could differ as to whether the evidence before the RO could
    constitute clear and unmistakable evidence, then it is unclear how the Board could conclude that
    the presumption of soundness would have been rebutted had the RO properly applied the
    presumption. To the contrary, if, as the Board concluded, reasonable minds could differ as to the
    state of the evidence before the RO in March 2003, the RO could not have concluded that the
    presumption of soundness was rebutted by clear and unmistakable evidence; that is, it could not
    have concluded that it was shown by clear and unmistakable evidence that Mr. Cohen’s condition
    preexisted service. See Vanerson v. West, 12 Vet.App. 254, 258-59 (1999) (defining clear and
    unmistakable evidence as evidence that is undebatable and cannot be misinterpreted or
    misunderstood (citing Russell, 3 Vet.App. at 313-14)); Kinnaman v. Principi, 4 Vet.App. 20, 27-
    28 (1993) (describing the burden of proof to rebut the presumption of soundness as “formidable”).
    3 Mr. Cohen also argues that the Board erred by relying on George, 30 Vet.App. at 373, to conclude that clear
    and unmistakable evidence was not required to demonstrate a lack of in-service aggravation. Appellant’s Br. at 18;
    Reply Br. at 9. In so doing, he acknowledged that we are bound by George, but argued that George was incorrectly
    decided and stated that he was advancing this argument to preserve it while the appeal of George was pending before
    the Federal Circuit. Appellant’s Br. at 18-23 & n.1; Reply Br. at 9-11. However, the Federal Circuit affirmed this
    Court’s decision in George. George v. McDonough, 991 F.3d 1227 (Fed. Cir. 2021). Therefore, the Court need not
    consider that argument further.
    7
    Accord Russell, 3 Vet.App. at 313-14 (defining clear and unmistakable error as error about “which
    reasonable minds cannot differ”).
    The Secretary defends the Board decision by arguing that Mr. Cohen “blurs the distinction
    between review of this case on the merits and review in the context of CUE.” Secretary’s Br. at 14.
    But it is the Board that has blurred these lines. The Secretary asserts that, because “this is a CUE
    case, . . . [Mr. Cohen] must affirmatively show that [the clear and unmistakable evidence
    threshold] could not be met.” Id. at 15. But that is not the conclusion that the Board reached.
    Instead, the Board concluded that “reasonable minds could differ as to whether the evidence of
    record at the time of the March 2003 rating decision could constitute clear and unmistakable
    evidence” of preexistence. R. at 12. Based on this conclusion, it is clear to the Court that the Board
    could only conclude that, had the RO properly considered the presumption of soundness, the
    presumption would not have been rebutted.
    However, the Court cannot, at this time, review the remainder of Board’s conclusion about
    the outcome-determinative nature of the RO’s error. The Board concluded that, had the RO
    properly applied the presumption of soundness, it would have concluded that the presumption
    would have been rebutted. Accordingly, the Board rejected arguments that the presumption of
    service connection would have resulted in an award of benefits since that presumption does not
    apply to preexisting conditions. But in light of the Board’s conclusion about the state of the
    evidence before the RO in March 2003, the presumption of soundness would not have been
    rebutted and the presumption of service connection would have potentially been applicable.
    In this regard, Mr. Cohen argues that, if the presumption of soundness would not have been
    rebutted, the extant evidence clearly and unmistakably demonstrates that the presumption of
    service connection for chronic diseases would have applied because he was diagnosed with a
    psychotic disorder in service, R. at 2045 (diagnosing schizoaffective disorder), and within a year
    following service discharge, R. at 3115 (diagnosing schizophrenia). Appellant’s Br. at 25 (“The
    evidence demonstrates that Mr. Cohen was diagnosed with psychotic disorders both in service and
    within the one-year presumptive period. As there is no evidence of in[ter]current causes, these
    conditions are service connected.” (internal citations and quotation omitted)); see 38 C.F.R.
    § 3.303(b) (2021), 3.309(a) (2021). However, because the Board rejected the applicability of
    § 3.303(b) upon finding Mr. Cohen’s condition as preexisting service, the Board did not render any
    8
    factual findings as to whether the two diagnoses—schizoaffective disorder during service and
    schizophrenia following service—are the “same chronic disease” as contemplated by § 3.303(b)
    and § 3.309(a). Compare R. at 3111 (March 2003 RO decision considering service connection for
    a single condition variously diagnosed as bipolar disorder, schizoaffective disorder, and
    schizophrenia) with R. at 3115 (February 2003 VA examiner’s opinion that, although he diagnosed
    Mr. Cohen with schizophrenia, Mr. Cohen’s history was not consistent with bipolar disorder or
    schizoaffective disorder). See Giles v. McDonough, 987 F.3d 1370, 1374-75 (Fed. Cir. 2021)
    (rejecting an argument that distinctly diagnosed conditions should be construed as the “same
    chronic disease” merely because they are encompassed under the umbrella category of “psychoses”
    under § 3.303(b) and holding that whether two diagnosed psychoses are the same chronic disease
    is a factual question to be resolved by the Board). Because “appellate tribunals are not appropriate
    fora for initial fact finding,” Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000),
    the Court
    concludes that remand of this matter is warranted for the Board to revisit its analysis regarding
    whether the RO’s error in misapplying the presumption of soundness was outcome determinative.
    On remand, Mr. Cohen is free to submit additional arguments and evidence, including the
    arguments raised in his briefs to this Court, and the Board must consider any such evidence or
    argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West,
    12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that “[a] remand
    is meant to entail a critical examination of the justification for the [Board’s] decision,” Fletcher v.
    Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in
    accordance with 38 U.S.C. § 7112.
    IV. CONCLUSION
    The stay of appellate proceedings imposed on May 28, 2020, is lifted. Upon consideration
    of the foregoing, the appealed portion of the March 18, 2019, Board decision is SET ASIDE and
    the matter is REMANDED for readjudication consistent with this decision.
    DATED: August 31, 2021
    9
    Copies to:
    Zachary M. Stolz, Esq.
    VA General Counsel (027)

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