Citation Nr: 0503568 Decision Date: 02/10/05 Archive Date: 02/22/05 DOCKET NO. 04-07 885 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date prior to April 28, 1997, for the grant of service connection for post-traumatic stress disorder (PTSD), based on clear and unmistakable error (CUE) in a rating decision dated April 12, 1990. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and a friend ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from August 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. On November 19, 2004, the veteran appeared and offered testimony at a hearing before the undersigned Veterans Law Judge sitting at the Winston-Salem, North Carolina RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. The veteran's original claim for service connection for PTSD was received on January 16, 1990, and denied by the RO in a decision dated April 12, 1990. He did not appeal. 2. An application to reopen the claim for service connection for PTSD was received by the RO on April 28, 1997, which was denied by the RO in a decision dated March 27, 1998; the veteran did not appeal that determination. 3. The RO, in a rating decision dated in September 2002, granted service connection for PTSD and assigned an effective date of April 28, 1997, based on a finding that the March 27, 1998, rating decision failed to consider evidence of a PTSD stressor found in the veteran's service medical records, and even noted on a deferred rating decision prior to the VA examination in November 1997. 4. The unappealed April 1990 RO decision, which denied service connection for PTSD, was undebatably erroneous in failing to consider a confirmed diagnosis of PTSD based on stressful combat experiences; and, if such error was not made, the veteran would have then been granted service connection for PTSD. CONCLUSIONS OF LAW 1. There was clear and unmistakable error (CUE) in the April 1990 RO decision denying service connection for PTSD. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2004). 2. The proper effective date for the grant of service connection for PTSD is January 16, 1990, the date of VA's initial receipt of a claim for service connection for PTSD. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background A review of the record shows that the veteran served on active duty from August 1968 to March 1971. His DD Form 214 reflects that he served in the Army in Vietnam and was stationed with an artillery division. His awards were listed as the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, an Army Commendation Medal, and a Bronze Star Medal. He was overseas for 1 year, 8 months, and 22 days. This DD Form 214 has been of record since March 1972. Received in June 1985 was a VA hospital summary, which showed that the veteran was admitted to a hospital on May 8, 1985, for an alcohol detoxification program. On a mental status examination, the veteran reported drinking up to a case of beer several times per week, and he had alcohol amnesia. It was noted that there were no signs or symptoms suggesting psychiatric disorder. During the course of hospitalization, the veteran received recommendation for relaxation therapy when he was evaluated for his claim that he had post- traumatic stress disorder (PTSD). The veteran's application for service connection for PTSD (VA Form 21-526) was received at the RO on January 16, 1990. Submitted in support of his claim were VA outpatient treatment reports, dated from June 1985 through February 1990. These records indicate that, on January 19, 1989, the veteran was seen for complaints of anxiety with stress, recurrent dreams, depression, and feelings of hopelessness at times. He was given a provisional diagnosis of questionable PTSD/anxiety depression. Upon further evaluation, the veteran indicated that he was on the verge of a breakdown. He reported nervous attacks, and severe mood swings. He also reported experiencing recurrent dreams. He indicated that his unit was overrun in Vietnam and 7 were killed. He also reported being subject to mortar attacks. The pertinent diagnosis was PTSD/anxiety. In June 1989, he was seen with complaints of panic attacks and fear of crowds; he denied having crying spells. Received in April 1990 was a response from the National Personnel Records Center (NPRC), indicating that the citation for the Bronze Star Medal had been filed in the service medical records envelop, along with General Orders # 843. In an April 1990 decision, the RO denied service connection for PTSD. The RO addressed the veteran's awards from Vietnam and other treatment records, and determined that PTSD had not been shown, and that the evidence did not document objective evidence of a stressor, which could serve as the basis for such a diagnosis. By letter dated May 16, 1990, the RO informed the veteran of its decision and his appellate rights. Another application for service connection for PTSD was received at the RO on April 28, 1997. Submitted in support of that claim were VA outpatient treatment reports, dated from April 1990 to July 1997, reflecting treatment for several disabilities. These records indicate that the veteran was seen for a psychiatric assessment in June 1995. At that time, the examiner stated that the veteran endorsed or described symptoms corresponding to the following DSM-IV criteria for a diagnosis of PTSD; they included: significant Vietnam trauma with helpless/fearful response, recurrent intrusive thoughts and nightmares, history of flashbacks, psychological distress at exposure to reminders of Vietnam, efforts to avoid thoughts and reminders of Vietnam, anhedonia, social detachment, sleep disturbance, irritability, hypervigilance, exaggerated startle response, all causing significant distress. The examiner stated that, according solely to the veteran's report, the criteria for a diagnosis of PTSD were met. Received in December 1997 was a copy of the veteran's military personnel records, DA Form 20, which contained similar information as the DD Form 214. On the occasion of a VA examination in November 1997, it was noted that the veteran worked with a unit assigned to recover disabled track vehicles during his period of active duty in Vietnam. He was in Vietnam for 20 months, and he stated that he was always in the field. During that time, he was subjected to ambushes and witnessed casualties among his comrades. The veteran was awarded the Bronze Star as well as other medals. The veteran reported that, after service, he lived "like there was no tomorrow;" he described his lifestyle as wild. It was noted that complaints have fairly consistently included anxiety symptoms that the veteran has connected to his combat experiences; and, the clinical impression has gradually moved from rejection of the diagnosis of PTSD to acceptance of it. It was noted that he reported aspects of combat exposure that led to a rating of heavy combat exposure for him. The examiner concluded that the veteran's symptom compilation fulfilled the criteria for the diagnosis of PTSD. He was functioning well and had improved with use of psychotropic medications, but although he had usually maintained employment and a stable family relationship, he was restricted in his socialization and vocational pursuits, and in his general level of psychological comfort. The pertinent diagnosis was PTSD, chronic. By a rating action of March 1998, the RO again denied the veteran's claim for service connection for PTSD. It was determined that no reply had been received to a request for more detailed information about any stressful experience in service. In a statement in support of claim (VA Form 21-4138), received in February 2001, the veteran requested that his claim for service connection for PTSD be reopened. Submitted in support of his claim were VA outpatient treatment reports, dated from July 2000 to February 2001, showing ongoing clinical evaluation and treatment for PTSD. During a clinical visit in October 2000, it was noted that the veteran provided more details of Vietnam, and became distressed while talking about it. He reported sleep problems and nightmares, as well as strong anxiety. The examiner indicated that the symptoms of PTSD were striking in a person with a lot of individual strengths, who had functioned very well in many areas of living, despite the severity of PTSD. When seen in February 2001, the veteran reflected on his thoughts of how young he was when he went to Vietnam. In a statement in support of claim, dated in July 2002, the veteran indicated that he arrived in Vietnam in July 1969; was assigned to an artillery battery; and that his unit went into Cambodia in April 1970 for approximately 30 days, in support of a major operation. The veteran reported that his unit (Charlie Battery) was overrun in July 1970 and suffered 7 casualties. The veteran recalled another incident when his unit was overrun, and he stayed with a South Vietnamese unit afterwards. He indicated that his unit was ambushed on the way to "B" Battery. During the above-mentioned overruns, Viet Cong children carried satchel bombs into the unit, detonated them and caused several deaths. The veteran also reported being involved in several mortar attacks. He noted that he was awarded a letter of distinguished service for manning a 50-caliber machine gun during a firefight at "B" Battery at Swan Loc in the Delta Region. VA treatment reports, dated from February 2001 to July 2002, show that the veteran continued to receive clinical attention and treatment for a number disabilities, including symptoms of his PTSD. A clinical evaluation in March 2002 reflects an assessment of PTSD, chronic, severe. Of record is a copy of a Citation for the Bronze Star Medal with attached General Orders Number 843. The citation indicated that it had been awarded to the veteran, "who distinguished himself by outstandingly meritorious achievement in connection with military operations against a hostile force in the Republic of Vietnam, during the period of May 2, 1970 to June 5, 1970." These forms indicate that they were received at the RO on April 5, 1990. In a September 2002 decision, the RO granted service connection for PTSD and assigned April 28, 1997, as the effective date of the grant of service connection. In this decision, the RO determined that there was clear and mistakable error in the March 1998 rating decision, which denied service connection, as it failed to consider evidence of a PTSD stressor found in the veteran's service medical records and even noted on a Deferred Rating Decision by a Winston-Salem Rating Specialist prior to the VA examination. At his personal hearing in November 2004, the veteran's representative argued that the VA made a clear and unmistakable error in not granting service connection in April 1990. It was argued that the veteran clearly had a stressor, insofar as he was a combat veteran with service in Vietnam; he noted that the veteran was awarded the Bronze Star Medal and other awards and citations reflecting service in Vietnam. It was also argued that a VA medical certificate, dated January 19, 1989, reflected a diagnosis of PTSD. The veteran testified that he had been undergoing treatment at the VA hospital since the 1970s. The veteran's friend noted that he had been in and out of the VA hospital ever since they had been together; she also noted that he had problems with depression, difficulty sleeping, flashbacks, and anxiety attacks. It was noted that the veteran had been on medication for PTSD since the 1980s. Submitted at the hearing were duplicate VA treatment reports, dated from January 1989 to July 1994. The January 1989 treatment report reflects a diagnosis of PTSD/anxiety. II. Legal Analysis The veteran maintains that an effective date prior to April 28, 1997, for the grant of service connection for PTSD is warranted. In this regard, he specifically maintains that service connection for PTSD should have been assigned in the April 1990 rating decision which initially denied his claim for PTSD. The veteran maintains that documents which showed that he was a combat veteran and had been diagnosed with PTSD were before the RO in April 1990 when the claim was denied. The effective date for an award of service connection and disability compensation, based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. For a grant of direct service connection, the effective date will be the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). The effective date of a grant of service connection based on a finding of CUE shall be the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.400(k). Legal authority provides that where CUE is found in a prior rating decision, the prior decision will be reversed or revised, and for the purposes of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal or revision of the prior decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). The United States Court of Appeals for Veterans Claims (the Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of 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 law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has further stated that a CUE is a very specific and a 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. Thus even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) citing Russell. The mere misinterpretation of facts does not constitute clear and unmistakable error. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one which would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). In this case, the veteran essentially argues that the records contained evidence that he was a combat veteran and he had been diagnosed with PTSD at the time of the April 1990 rating decision. He maintains that his DD Form 214 showed that he had been awarded the Bronze Star Medal. In fact, the rating decision noted that service records show "he was decorated for Vietnam Service" from July 1, 1969, to March 23, 1971, and he received the Bronze Star Medal for meritorious performance of duty in Vietnam. It was further noted that he was assigned to an artillery battalion while stationed in Vietnam. At that time, the records also contained a diagnosis of PTSD, based on the veteran's reported stressor of his unit being overrun in Vietnam and suffering 7 casualties. When the veteran's original claim for service connection for PTSD was adjudicated in 1990, the basic requirements for establishing PTSD were essentially the same as the current requirements which require medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence between current symptomatology and the claimed inservice stressor. In addition, also in effect was 38 U.S.C.A. § 1154(b). Under 38 U.S.C.A. § 1154(b), the combat veteran's testimony alone is enough to establish the disease or injury alleged occurred during service unless it is inconsistent with the circumstances, conditions, or hardships of service or unless otherwise rebutted by clear and convincing evidence. The Board notes that at the time of the 1990 decision, the veteran had been diagnosed as having PTSD based on his alleged stressors which occurred while he was in Vietnam. Although the RO determined that the veteran did not present one specific stressor which could serve as the basis for a diagnosis of PTSD, the Board finds that the information of record in 1990 shows that the veteran told the VA examiner who diagnosed him as having PTSD that, in pertinent part, his unit was overrun and 7 soldiers were killed, and he experienced mortar attacks. The Board finds that this information was sufficient to serve as the allegation of a stressor. Also of record at the time of the 1990 decision was the veteran's DD Form 214 which showed, as set forth above, that he had been awarded various awards to include the Vietnam Service Medal and the Bronze Star Medal. The RO has recognized the Bronze Star Medal as evidence of combat in this instance when it awarded the veteran's claim for PTSD. The Board will accept this characterization for purposes of this decision. In addition, the veteran's statements are noted to be historically accurate with respect to his claim of troops being sent into Cambodia during the time frame in which he was assigned there. Since the veteran has been considered a combat veteran, his allegations alone would be sufficient to establish the occurrence of his alleged various stressors during service. This information in conjunction with the diagnosis of PTSD based on alleged stressors satisfied the criteria for service connection for PTSD. Inasmuch as the RO has held that the receipt of the Bronze Star Medal established combat service in this case, and documentation of his receipt of this medal was of record at the time of the April 1990 decision, the RO should have applied 38 U.S.C.A. § 1154(b). Further, as there was a diagnosis of PTSD based on alleged stressors of record, the veteran would have been granted service connection for PTSD. As such, the Board finds that the error made in the April 1990 was undebatable and of the type that, had it not been made, the outcome of the case would manifestly have been different. As noted, in September 2002, the veteran was eventually granted service connection for PTSD after the RO reviewed the Citation for the Bronze Star Medal with attached General Orders Number 843, which the RO determined showed combat service. Although the RO indicated that it also relied on other evidence, such as the report of a VA examination in November 1997, which reported a diagnosis of PTSD, the Board finds that the information showing the veteran's combat status coupled with the January 1989 diagnosis based on the veteran's report of stressors (which should have been considered satisfactory since he was a combat veteran) was a sufficient basis for service connection for PTSD. Accordingly, the Board concludes that there was CUE in the April 1990 rating decision which denied service connection for PTSD. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. § 3.105(a) (2004). Since the claim for service connection for PTSD, which preceded the April 1990 decision, was received by the RO on January 16, 1990, that is the correct effective date for service connection for PTSD. Thus, the Board grants an earlier effective date of January 16, 1990, for service connection for PTSD. The Veterans Claims Assistance Act of 2000 (VCAA) is applicable to this claim. This new law redefines VA's obligations insofar as properly notifying and assisting veterans in developing their claims. Inasmuch as the Board is granting the veteran's claim for an effective date earlier than April 28, 1997, for the grant of service connection for PTSD, there is no need to discuss VA's compliance with the VCAA. ORDER Inasmuch as the April 1990 rating decision contains CUE, an earlier effective date of January 16, 1990, for the grant of service connection for PTSD is allowed. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs