Citation Nr: 0400460 Decision Date: 01/07/04 Archive Date: 01/21/04 DOCKET NO. 99-17 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an effective date earlier than September 30, 1998, for grant of service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had honorable active service from January 1976 to October 1977. This appeal arises from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, that granted service connection for posttraumatic stress disorder (PTSD) and assigned a 70 percent evaluation effective from September 30, 1998. The veteran has appealed to the Board of Veterans' Appeals (Board) for an earlier effective date. The veteran testified before an RO hearing officer in October 1999 and before the undersigned member of the Board in January 2002. In June 2003, the Board remanded the case to the RO for additional development. REMAND During a January 2002 hearing, the veteran's representative asserted "grave procedural error" in a prior final decision and asserted that VA never informed him of the type of evidence necessary to win his earlier effective date claim. The Board construes this as a claim of clear and unmistakable error (hereinafter referred to as CUE) in a prior decision. Therefore, the veteran and his representative must be advised of relevant provisions for raising a valid CUE claim. These are discussed below. 38 C.F.R. § 3.303(a) (1983), which was in effect at the time of the final 1984 RO decision, states, "Determinations as to service connection will be based on review of the entire evidence of record." 38 C.F.R. § 3.303(a) (1983). 38 C.F.R. § 3.105(a) (2003) states, "Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where the evidence establishes such error, the prior decision will be reversed or amended." The United States Court of Appeals for Veterans Claims (CAVC) has held that to find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed and evaluated will not suffice), or the law in effect at the time must have been incorrectly applied. The determination must be based on the record that existed at the time of the prior adjudication. Damrel v. Brown, 6 Vet. App. 242, 245-46 (1994); Russell v. Principi, 3 Vet. App. 310, 313-314 (1992). Records submitted since the prior final RO decision have no relevance to CUE, as the determination as to whether CUE was committed must be based on the evidence in the record at the time of the earlier decision. Also, in order to raise a reasonable claim of CUE, "there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error ... that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In Bell v. Derwinski, 2 Vet. App. 611 (1992) the U.S. Court of Veterans Appeals (now the CAVC) held that where the documents proffered by the appellant are within the Secretary's control and could reasonably be expected to be a part of the record "before the Secretary and the Board," such documents are, in contemplation of law, before the Secretary and should be included in the record. However, a more recent CAVC holding severely limits the applicability of the Bell holding. Moreover, a subsequent precedent opinion of VA's General Counsel (hereinafter GC) also prohibits consideration of VA medical evidence not actually in the claims file at the time of the adverse decision. These are discussed below. In Damrel v. Brown, 6 Vet. App. 242, 246 (1994), the CAVC held that the constructive notice rule first announced in Bell was not applicable to decisions rendered prior to Bell and held that where CAVC opinions formulate new interpretations of the law subsequent to an RO decision, those holdings cannot be the basis of a valid CUE claim. Although the CAVC has recognized that a viable CUE claim may be premised on the theory that the RO had failed to consider evidence of a high probative value, the Court has made it clear that, for such a claim to succeed as to an RO decision issued prior to February 1990, the RO must have denied the very existence of the evidence. See Glynn v. Brown, 6 Vet. App. 523, 531 (1994) (CUE not found where prior decision "did not deny the existence of an in-service injury" but denied only that "any injury appellant may have sustained during service did not aggravate his preexisting condition"); cf Russell, 3 Vet. App. at 319 (RO's denial of existence of evidence of record constitutes undebatable error). According to VAOPGCPREC 12-95, if, subsequent to a final AOJ denial prior to July 21, 1992, a claim is reopened and benefits awarded, the AOJ's failure to consider evidence in VA's possession, but not actually in the record before the AOJ, may not form the basis for a finding of CUE. In that instance, when a claim is subsequently reopened and benefits are awarded, the effective date will be the date on which the reopened claim was filed, per 38 USC 5110(a). Moreover, the opinion notes that in VAOPGCPREC 12-94, GC had concluded that, based on a United States Supreme Court holding, precedential decisions of the Court of Veterans Appeals generally do not apply retroactively to cases which have been finally decided, but do apply to cases still open on direct review. Accordingly, this case is remanded to the RO for the following: 1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with any applicable legal precedent. 2. The RO should advise the veteran of the provisions for stating a valid claim of CUE, as set forth above. 3. After the development requested above has been completed to the extent possible, the RO should determine whether further adjudication for CUE is necessary. If the benefits sought remain denied, the veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. _________________________________________________ LAWRENCE M. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).