GENERALIZED ANXIETY DISORDER

JENNIFER HWA · 2026 · Case ID: A26040996

DENIED

Summary

The Veteran, who served on active duty for training in the Army from May 2010 to June 2011, February 2016 to November 2016, and April 2019 to May 2020, appeals a June 2023 rating decision that denied revision of a March 2013 rating decision based on clear and unmistakable error (CUE). The Veteran sought an increased disability rating for generalized anxiety disorder, arguing that the original 10 percent rating was CUE because the adjudicator allegedly ignored evidence showing symptoms aligned with higher ratings. The Veteran cited a February 2012 VA examination noting significant symptoms like decreased social functioning, insomnia, hypervigilance, and emotional numbing, along with treatment records indicating symptoms were minimized. The Board reviewed the claim for revision based on CUE, considering whether the March 2013 decision was final. The Board found the March 2013 decision was final because the Veteran did not file a timely notice of disagreement, and the VA treatment records from July 2014 were submitted more than one year after the March 2013 decision, thus not qualifying as new and material evidence under 38 C.F.R. § 3.156(b). The Board also noted that any failure in VA's duty to assist cannot constitute CUE. The Board concluded that the March 2013 rating decision was not clearly erroneous, as the evidence did not establish undebatable error that manifestly changed the outcome. The original 10 percent rating for generalized anxiety disorder was upheld.

Rationale

March 2013 rating decision was final; no timely appeal or new and material evidence within one year.; Failure in VA's duty to assist does not constitute CUE.; Original 10 percent rating for generalized anxiety disorder was not clearly erroneous.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

9400

Docket No.

231117-397705

Full Decision Text

Citation Nr: A26040996
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 231117-397705
DATE: April 30, 2026

ORDER

An initial disability rating greater than 10 percent for generalized anxiety disorder, based on clear and unmistakable error (CUE) in a March 2013 rating decision is denied.

FINDING OF FACT

The Veteran did not appeal a March 2013 rating decision which granted an initial 10 percent disability rating for generalized anxiety disorder, and that decision did not contain CUE.

CONCLUSION OF LAW

The criteria for revision of a March 2013 rating decision based on CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty for training from May 2010 to June 2011, February 2016 to November 2016, and again from April 2019 to May 2020.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2023 rating decision issued by a U.S. Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) which found that revision of the March 2013 rating based on clear and unmistakable error (CUE) was not warranted. The Veteran, through his representative, sought higher-level review (HLR) of the June 2023 rating decision and, in a November 2023 HLR rating decision, the AOJ continued the previous decision.

In a November 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran appealed the November 2023 HLR rating decision, electing the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the June 2023 AOJ decision, which was subsequently subject to HLR. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to HLR, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Analysis

The Veteran seeks revision of a March 2013 rating decision, which granted service connection for generalized anxiety disorder, assigning a 10 percent disability rating, effective June 12, 2011, pursuant to Diagnostic Code (DC) 9400. The Veteran asserts that he should have received either a 30 or 50 percent rating pursuant to DC 9400. Specifically, the Veteran argues that the AOJ ignored outcome determinative evidence that showed clear entitlement to a higher rating for his mental health disorder. Of particular note, a February 2012 VA examination noted that the Veteran suffered from "decreased social functioning... insomnia with diminished sleep duration with resulting tiredness... extreme startle reactions with flashback episodes... emotional distancing and numbness... [and] hypervigilance." Additionally, a February 2012 VA treatment record shows relationship issues due to the Veteran's heavy alcohol usage, and a November 2011 VA treatment record shows that the Veteran's symptoms were "minimized," showing that symptomology was worse than reported. These records showed that the Veteran's symptoms more closely aligned with the rating criteria for a 50 percent rating, but at a minimum, meet the criteria for a rating of 30 percent.

A previous AOJ determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). In addressing the Veteran's motion for revision of the March 2013 rating decision based upon CUE, the Board must initially consider whether the March 2013 decision was final.

In February 2025 correspondence, the Veteran's representative noted that VA CAPRI records show that VA had in their possession treatment records dated July 22, 2014, that noted "active problems: PTSD, chronic" with "other specified counseling." According to the Veteran's representative, these records were created and in the constructive possession of VA within the one year-appeal period following the March 2013 rating decision.

The principle of constructive possession came about after the issuance of Bell v. Derwinski, 2 Vet. App. 611 (1992). Constructive possession holds that VA records existing at the time of the rating decision or during the appeal period after the issuance of the rating decision are constructively possessed by VA. Constructive possession renders the rating decision non-final until a determination is made as to whether such evidence is new and material. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020) and 38 C.F.R. § 3.156(b).

"New and material evidence" is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

In February 2025 correspondence, the Veteran's representative noted that VA has not yet issued a decision addressing whether the July 2014 treatment records constituted new and material evidence. According to the Veteran's representative, VA's failure to address these documents, in direct relation to the March 2013 decision, would serve to render the prior decision as non-final. Resultingly, these claims would remain in a pending and unadjudicated status. Thus, it was asked that, in considering the Veteran's claim for revision based upon CUE, the Board also consider and discuss the applicability of 38 C.F.R. § 3.156(b).

Here, the Board finds that the March 2013 rating decision became final because the Veteran did not file a timely notice of disagreement challenging this determination, nor did he submit new and material evidence within one year of its promulgation. Significantly, while the claims file includes VA treatment records dated in July 2014, these records are dated more than one year after the March 2013 rating decision. Significantly, VA treatment records show a gap of treatment from January 2013 to July 2014, and July 2014 is more than one year after March 2013. Furthermore, even if these records were dated within one year of the March 2013 rating decision, they are duplicative of records available at the time of the March 2013 rating decision as these records merely show continued treatment for the Veteran's psychiatric disability. Thus, because new and material evidence was not submitted within one year of the March 2013 rating decision, the March 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103.

Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown,
§§ 3.104, 3.105. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44.

Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id.

CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated;" and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).

The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442.

The Veteran was awarded a 10 percent disability rating for his generalized anxiety disorder under DC 9400 in the March 2013 rating decision. Having reviewed the record in its entirety, the Board concludes that the AOJ's initial assignment of a 10 percent disability rating in the March 2013 rating decision was not clearly erroneous.

In connection with the Veteran's initial claim for service connection for a psychiatric disability, he was afforded a VA psychiatric examination in February 2012. Significantly, this examination report shows that the Veteran was diagnosed with generalized anxiety disorder which was causing anxiety and chronic sleep impairment. It was also noted that the Veteran worked full-time as a lawyer. Significantly, the examiner opined that this disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.

After considering this evidence, the AOJ awarded the Veteran a 10 percent rating for generalized anxiety disorder under DC 9400. As it was in effect in March 2013, DC 9400 is part of the General Rating Formula for Mental Disorders. Under that formula, ratings from 0 percent to 100 percent are assigned based on the severity, frequency, and duration of symptoms, both listed and unlisted, as well as the overall level of occupational and social impairment.

Specifically, a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less), chronic sleep impairment,
0. As it was in effect in March 2013, DC 9400 is part of the General Rating Formula for Mental Disorders. Under that formula, ratings from 0 percent to 100 percent are assigned based on the severity, frequency, and duration of symptoms, both listed and unlisted, as well as the overall level of occupational and social impairment.

A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

The Board finds that, at the time of the March 2013 rating decision, it was not undebatable that the Veteran's psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). Any argument otherwise is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator." It is the prerogative of the factfinder... to interpret the evidence and draw reasonable inferences from it." Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44.

While it appears that the Veteran's VA treatment records dated at the time of the March 2013 rating decision were not obtained, reviewed, and/or considered, the Board notes that deficiencies with VA's duty to assist at the time of the prior denial cannot constitute CUE as a matter of law. See 38 C.F.R. § 20.1403 (d) (2) (one example of a situation that is not CUE is "Duty to Assist. The Secretary's failure to fulfill the duty to assist"); see also Cook v. Principi, 318 F.3d 1334, 1344-47 (Fed. Cir. 2002) (breach of the duty to assist cannot form the predicate for a motion for revision of a finally decided claim based on CUE). As a consequence, any failure in VA's duties to notify and assist at the time of the March 2013 rating decision cannot give rise to a finding of CUE.

Accordingly, there cannot be clear and unmistakable error. Therefore, a revision of the evaluation assigned in the March 2013 rating decision is not warranted.

JENNIFER HWA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board April Maddox, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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