## United States Court of Appeals for the Federal Circuit

2007-7095

WILLIAM B. WILLSEY, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs,

Respondent-Appellee.

Kenneth M. Carpenter , Carpenter, Chartered, of Topeka, Kansas argued for claimant-appellant. Steven J. Gillingham , Assistant Director, Commerc ial Litigation Branch, Civil Division, United States D epartment of Justice, of Washington, DC argued for respondent-appellee. With him on the brief were Jeanne E. Davidson , Director, and Richard P. Schroeder , Trial Attorney. Appealed from: United States Cour t of Appeals for Veterans Claims Judge William A. Moorman

## United States Court of Appeals for the Federal Circuit

2007-7095

WILLIAM B. WILLSEY, Claimant-Appellant, v.

JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in 04-0054, Judge William A. Moorman.

__________________________ DECIDED: August 11, 2008

__________________________

Before NEWMAN, Circuit Judge , BRYSON, Circuit Judge , and POGUE, ∗ Judge

. POGUE, Judge

. This case raises the question of whether a 1983 denial of dis ability benefits for Post Traumatic Stress Disor der (“PTSD”) was free of Cl ear and Unmistakable Error (“CUE”). Although the government challenges our jurisdiction to consider the issue, we conclude that the question raised is a legal one subject to our review. Because there was no CUE in the denial, however, we affirm the decision below.

∗ Honorable Donald Pogue, Judge, United States Court of International Trade, sitting by designation.Background The record indicates that Claimant/A ppellant William Willsey (“Willsey”) -- who served in the U.S. Army in Vietnam from February 1969 until February 1971-- is disabled by PTSD. What is at issue, however, is the effective date of that disability. The Department of Veterans Affairs (“VA ”) Regional Office (“ RO”) recognized Mr. Willsey’s disability in 1999, with a 30% rating, and, in 2001, raised his rating to 100%, effective from October 1998. Mr. Willsey, however, seeks an earlier effective date, based on his claim that an earlier 1983 decisi on denying his claim constituted CUE. Mr. Willsey’s VA records reveal the c ontext of the 1983 denial. The records show that in July of 1982, Mr. Willsey was tr eated for PTSD in a VA hospital in Danville Illinois; he was also treated as an out-patient by a VA hospital in Peoria Illinois in August 1982. In April 1983, Willsey filed a claim fo r benefits with the VA. A special psychiatric examination was performed at t he VA medical center in Chic ago the following June. In the report of that exam ination, the psychiatric examiner determined that Mr. Willsey was not suffering from PTSD, but noted that t he examiner had not seen the records from Willsey’s earlier treatments for PTSD and recommended that the VA adjudicator obtain these earlier records. It appears that the VA’s records do not definitively resolve the narrow issue of whether the earlier records were obtained by the VA adjudicator. Willsey’s claim, however, was deni ed by the RO in September 1983. 1 Mr. Willsey did not, in 1983, appeal that initial decision. Instead, in 1996, Willsey applied to hav e his case re-opened. When the RO denied Willsey’s 1996 application, Willsey a gain did not appeal the decision. However,

1 The VA made this determination on September 8, 1983.

2007-7095 2in October of 1998, Willsey agai n filed an application to reopen his claim. In response, and as noted above, the RO granted a 30% disabilit y, in June of 1999, but also held that the 1983 decision did not contain CUE. The fo llowing July, Willsey filed a notice of disagreement with his initial disability rating and with the denial of his request for revision of his prior VA decisions. The VA pr ovided Mr. Willsey with a “statement of the case” but did not immediately change his ra ting. Willsey filed another appeal in May 2000. His rating was subsequently raised to 70% and, in Apr il of 2001, the RO increased Willsey’s disability rating to 100%, effective from Oct ober, 1998, the filing date of his first successful claim. Accord ingly, the 2001 decision left open only the question of an earlier effective date. In re sponse, Willsey requested a revision of the 1983 decision, contending again t hat it was the result of e rror. In December, 2003 the Board of Veterans Affairs (“BVA” or “Boar d”) denied the request for revision and denied the earlier effective date. T he Board also found no CUE in either the 1983 or the 1996 decisions. Willsey appealed the Board’s deci sion to the Court of Appeals for Veterans Claims (“Veterans Court”), but the Veterans Court upheld the Board’s ruling. Willsey now appeals the Veterans Cour t’s ruling to this court. Jurisdiction It is our view that the Court has “rule of law” jurisdiction, as provided by 38 U.S.C. § 7292(a), 2 over Willsey’s claim that the Veterans Court failed, in its review of Willsey’s case, to apply the test for es tablishing a CUE. Section 7292(a) states, in relevant part: After a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other

2 38 U.S.C. § 7292(a) (2000), amended by 38 U.S.C. § 7292(a) (Supp. II 2002)

2007-7095 3than a determination as to a factual ma tter) that was relied on by the Court in making the decision

. 38 U.S.C. § 7292(a) (2000) amended by 38 U.S.C. § 7292(a) (Supp. II 2002). The rule of law for determining if CUE is present is stated in a decision of the Veterans Court, Russell v. Principi , 3 Vet. App. 310 (1992). Russell established a three-prong test for establishing CUE, i.e., that, in order to revi se a final VA decision, it must be the case that: 1) Either the correct facts, as they were known at the time, were not before the adjudicator or the statut ory or regulatory provisi ons extant at the time were incorrectly applied, 2) The error must be “undebatable” and 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 the law that existed at the time of the prior adjudication in question. Russell , 3 Vet. App. At 313-14. That test was subsequently ad opted in substance in this court’s decision in Cook v. Principi , 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc). Willsey contends that the Veterans Court di d not apply the rule of law as set out in Russell for determining CUE, and that this fa ilure to apply the rule from Russell gives this Court jurisdiction to hear his appeal. The VA counters that, at most, Willsey is alleging that the Veterans C ourt improperly applied the rule of law to the facts of his case and that, therefore, this Court la cks jurisdiction to hear Willsey’s appeal. In Morgan v. Principi , 327 F.3d 1357 (Fed. Cir. 2003) we held that the changes made by Congress to 38 U.S.C. § 7292(a) in 2002 had the effect of giving this Court jurisdiction over “a decision of the [Veterans Court] on a rule of law as a separate jurisdictional basis” and that this gave the court a new form of “case” jurisdiction.

2007-7095 4Morgan at 1361 (“[T]he amendment enacted by Congress has the effect of making the review of ‘a decision of the Court [of Appeals for Veterans Cl aims] on a rule of law’ a separate jurisdictional basis . . . . In shor t, Congress responded to this court's entreaty by enacting a form of ‘case’ jurisdiction.” ) . See also Forshey v. Principi , 382 F.3d 1335, 1347-48 (Fed. Cir. 2002) (explaining the diffe rence between “issue” jurisdiction and broader “case” jurisdiction). As explained in Morgan , a “rule of law” may include a court-made rule of the sort stated by the Veterans Court in Russell . Morgan , 327 F.3d at 1361. The VA contends that Russell does not establish the rule for CUE, but rather that the rule is established by 38 U.S.C. § 5109A(a) (“A decision by the Secretary under this chapter is subject to revision on the gr ounds of clear and unmis takable error. If evidence establishes the error, the prior dec ision shall be reversed or revised.”). The VA’s position, however, is incorrect. Although 38 U.S.C. § 5109A do es provide that a RO decision is subject to revision based up on CUE, § 5109A does not set out the test for when CUE is present. That is set out by the Veterans Court in Russell and by this court in Cook , which is why these decisions provide the “rule of law” here. As noted, Willsey alleges that the Vetera ns Court did not, in the case below, apply the rule for determini ng CUE set out in Russell . The Veterans Court’s short, unpublished decision mentions Russell but makes no attempt to show how Willsey’s claim failed to meet its test. Rather, the Ve terans Court decision simply concludes that there was no CUE in the RO de cision. Willsey’s contention, then, that the Veterans Court did not apply the rule in Russell is a prima facie legal claim and provides grounds for this Court to take jurisdiction over this case under our “case jurisdiction” standard.

2007-7095 5Accordingly, this Court may decide all re levant questions of law in this appeal from a decision by the Veterans Court, 38 U. S.C. § 7292(d)(1), and legal determinations of the Veterans Cour t are reviewed de novo . Prenzler v. Derwinski , 928 F.2d 392, 393 (Fed. Cir. 1991). We may “affi rm or, if the decision of the Veterans’ Court is not in accordance with law, . . . modify or reverse the decision of the [Veterans Court] or . . . remand the matter, as appropriate.” 38 U.S.C. § 7292(e)(1) (2000). 3
Discussion In light of the statutory pr ohibition against our review of factual determinations or the application of law to the facts of a particular case, 38 U.S.C. § 7292(d )(2), the issue before this court is whether the Veter ans Court applied its decision in Russell to the question of whether there was CUE in th e 1983 VA Regional Office decision denying Willsey’s application for service connection, not whether the application of that rule to the particular facts of this case was correc t. Nonetheless, in order to assess Willsey’s contention that the cour t did not apply the Russell rule at all, it is necessary to address the facts of the case, and the court’s analysi s of those facts, in some detail. Accordingly, we will consider, in turn, each prong of the Russell test. Willsey first contends that the VA adjudicator who ruled on his application in 1983 did not have before him “the co rrect facts, as they were known at the time” because, Willsey claims, the VA examiner who dete rmined that Willsey was not suffering from PTSD had not reviewed the medical reports from his earlier examinations. Willsey claims that these earlier reports found him to suffer from PTSD. Thus Willsey’s argument here seems to be that if the VA examiner did not review the earlier records

3 Except in constitutional challenges, not an issue in this case, we may not review factual determinations. 38 U.S.C. § 7292(d)(2).

2007-7095 6and amend his or her report to the adjudicator, the adjudica tor’s decision would not be based on the “correct facts, as th ey were known at the time.” Willsey next contends that, because t he examiner had not seen the earlier medical reports and had the oppor tunity to revise his diagnosis based on these reports, the VA adjudicator’s decision is based on an “undebatable error” of the sort “which, if it had not been made, would have m anifestly changed the outcome at the time it was made.” Finally, Willsey contends that the reco rd and law at the time, including the diagnosis of PTSD by two VA physicians, requi red an award of disability compensation. If each of these contentions were to be correc t, Willsey would have met all of the prongs of the Russell test for CUE. The record before us, however, does not r equire reversal of the Veterans Court’s conclusion that there was no CU E in this case. With regar d to the first prong of the Russell test, on the basis of the record, there is some ambiguity as to whether the earlier medical reports were or were not before the adjudicator. It is clear, however, that the adjudicator knew of the medical record s and their basic content, even if he did not have them directly in front of him. (JA41, 85). The Board held, and the Veterans Court affirmed, that evidence supported the claim that the VA adjudicato r did consider the medical records from Willsey’ s earlier examinations. Additi onally, the Board held that, at most, any error here, assuming it was error, was a breach of the “ duty to assist”. (JA 41). However, a breach of the “duty to assist ” alone does not constitute CUE. Cook v. Principi , 318 F.3d 1334, 1341 (Fed. Cir. 2002). We cannot conclude that more is required by the first prong of the Russell test.

2007-7095 7We also cannot conclude that the decisi on of the RO contai ned an “undebatable” error. The RO made its decision on the bas is of PTSD being “not found on exam” by the VA examiner. (JA 41). The RO at the least knew of the other medical records. For us to hold that the decision of the RO in this case was based on an “undebatable” error, we would have to hold that no reasonable adjudicator could weigh the evidence in the way that the adjudicator did. This legal determination would, on the record before us, be unfounded. A reasonable adjudi cator could, after reviewing the reports from the VA examiner and Willsey’s other records, determi ne that greater weight should be given to the VA examiner’s report, parti cularly because that report was conducted especially for the purpose of determining service connection and was the last in time. Even were we to disagree with the adjudicator’s decision, we would not be free to re-weigh the evidence to conclude that this decision, even if it were at least arguably not the best one, was so unreasonable as to result in an undebatable error. Finally, the record and the law as they existed at the time of the determination do not compel a finding of CUE in the 1983 determination. Wi llsey seems to contend that, because he had two prior diagnoses of PTSD, the adjudicator was required to find that he was disabled and there was service connec tion in his case. But, Willsey was also later diagnosed as not having PTSD by a VA examiner, after the two earlier examinations. Willsey does not point to any ru le or regulation that states that earlier examinations, if they are gr eater in number, outweigh late r examinations and that the adjudicator therefore ought to hav e granted him disability. Wi thout such a rule it again seems that Willsey is asking us to re-weigh the evidence, somethi ng we are not free to do.

2007-7095 82007-7095 9 Conclusion The Court recognizes the very real difficu lties facing Mr. Willsey in seeking both recognition and treatment for PTSD. We recognize as well t hat the VA’s case processing at issue here was arguably less than perfect in all of the various steps of its evaluation and treatment of Mr . Willsey’s condition. None of these miscues, however, rise to the level of a clear, unmistakable erro r. Therefore, the decision of the Veterans Court denying an earlier effective date to Willsey is affirmed. Affirmed