Simmons: Harmless Error in the Context of CUE

Simmons v. Wilkie, Case Number 16-3039, decided September 20, 2018 addresses a harmless error analysis in the context of a CUE claim.

During service, the veteran was hospitalized for psychiatric observation and the records noted a history with “nerves” and a diagnosis of situational depression.  A 1972 RO decision granted pension benefits related to arthritis.  In 1974 the veteran sought disability compensation for arthritis and noted he thought his arthritis was related to his in-service mental depression.  A RO decision from that same year found neither the arthritis condition nor the anxiety reaction incurred during service. 

In 2005 the veteran through counsel filed a CUE motion as to the 1974 decision denying service connection for arthritis and a nervous condition.  It was denied and was the subject to an appeal and remand from the Veterans Court in 2016.  This resulted in another 2016 Board decision finding no CUE occurred in the 1974 decision and specifically stating neither the presumption of soundness or service incurrence applied.

The veteran argued “that, consistent with evidence extant in 1974, the Board made favorable findings of fact that in service he was diagnosed with an acquired psychiatric disability not noted upon service entry, and therefore the Board should have found that the RO erred in 1974 (1) in not affording him the presumptions under sections 105(a) and 1111 and (2) in not concluding that such disability was incurred during service, meeting the second element of service connection.”  Id. at *6. 

The Court found the Board did err in the failure to apply the presumption of soundness and service incurrence. Id. at *7-*9.  However, the Court did not end its analysis there.  Instead, it stated:

Merely finding an error, however, is not enough for Mr. Simmons to prevail. We are statutorily required to consider whether those errors prejudiced him. 38 U.S.C. § 7261(b)(2); see Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant has the burden to show prejudicial error).  The matter is somewhat more complicated in the context of CUE because part of the analysis that the Board undertakes incorporates a form of prejudicial error analysis—an error cannot be CUE unless it would have "manifestly changed the outcome" of the underlying agency decision.

Id. at *9.  It continued to explain:

in the context of our review of a Board decision on CUE, if we determine that the Board's manifestly changed outcome conclusion as to the underlying decision was not arbitrary or capricious and that it was supported by adequate reasons or bases, there would be no need for the Court to employ a prejudicial error analysis because there would be no Board error, the predicate for a Court harmless error analysis.

Id. at *10.

The Court explained its harmless error analysis by stating “prejudice is established by demonstrating a disruption of the essential fairness of the adjudication, which can be shown by demonstrating that the error (1) prevented the claimant from effectively participating in the adjudicative process, or (2) affected or could have affected the

outcome of the determination.”  Id. at *12. 

The Court characterized the veteran’s argument as stating “the essential fairness of the adjudicative process is disrupted if the Board fails to correctly apply mandatory statutory and regulatory presumptive provisions.”  Id. at *13.  And, “if the Court's harmless error

analysis focuses solely on whether correction of the Board's error manifestly would result in a different outcome, it would undermine the importance and value of statutory and regulatory presumptions.”  Id. at *14.  The Court concluded the first prong of its analysis by stating “even considering the pro-claimant nature of the veterans benefits system, we hold that the failure to afford the benefit of the type of statutory or regulatory presumption at issue in this case is not an inherently prejudicial error, although it may nevertheless be prejudicial in a particular case.”  Id. at *16. 

The Court then shifted in its analysis to asking whether the Board’s error prejudiced the veteran in this particular or individual case.  The Court noted the veteran argued against a finding on this prong: ‘He argues that this Court's usual harmless error review, which generally involves determining whether Board error would have made a difference in a benefits determination outcome, would compel us to engage in plenary review of the underlying facts of the RO decision, an endeavor that the Court in Archer prohibited. For

several reasons, the Court disagrees.”  Id. at *17.  The Court explained:

his argument overlooks that the Court in reviewing a Board decision on a CUE motion undertakes two separate inquiries. The prohibition on plenary review applies when the Court is determining whether the Board decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.  In contrast, when conducting a

harmless error analysis, the Court has already determined that the Board has erred and that the Board did not address, or did not address adequately, whether, if the underlying decision were incorrect, the outcome would manifestly have been different.  In that context, the Court is determining whether the Board error was prejudicial or affected the essential fairness of the adjudication.

Id. at *17-18.

The Court found the Board’s errors did not prevent the veteran from participating in the processing of his CUE motion or affect the overall fairness of the process and the Board’s errors did not affect its ultimate determination.  Id. at *19.  The Court acknowledged the presumptions of soundness and service incurrence but noted they do not relieve a claimant of providing evidence of the third—or linkage—prong of service connection.  Id. at *19.  It then specifically found a medical record relied upon by the veteran did not make that linkage and even if did that the record before the RO in 1974 also included a VA examiner's opinion that the acquired psychiatric disability was secondary to a non-service-connected arthritic condition.  Id.  “Therefore, despite his arguments, the Court cannot agree with Mr. Simmons that "[h]ad the presumption[s] been afforded[,] based on the evidence of nexus in the record, an award of service compensation would have been required."  Id.

This decision is a hard result, but is helpful in reminding us that a CUE motion must be rooted in the record existing at the time of the decision under attack and the record must prove all elements of the claim. 

The decision was by Judge Bartley and joined in by Chief Judge Davis and Judge Allen.

To know more about whether Thomas Andrews can help you, please visit my website.