Citation Nr: 0507968 Decision Date: 03/17/05 Archive Date: 03/30/05 DOCKET NO. 00-15 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether there was clear and unmistakable error in an April 29, 1994, rating decision which denied the claim of entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an earlier effective date than October 15, 1999, for the grant of service-connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Associate Counsel INTRODUCTION The veteran had active service from August 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which essentially reopened the veteran's previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD), and granted the claim on the merits, evaluating the service- connected PTSD as 100 percent disabling effective October 15, 1999 (the date of the veteran's reopened claim); and on appeal of a March 2004 rating decision issued by the RO, which determined that there was no clear and unmistakable error in the April 1994 decision that denied entitlement to service connection for PTSD. In October 2000, the veteran withdrew his request for a Board hearing. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.702 (2004). The Board remanded the appeal to the Appeals Management Center (AMC) in April 2001 and it has now have been returned to the Board. FINDINGS OF FACT 1. The April 29, 1994, rating decision, which denied entitlement to service connection for PTSD did not contain an outcome determinative error. 3. The April 29, 1994, rating decision is final. 4. The veteran's re-opened claim of entitlement to service connection for PTSD was received on October 15, 1999. CONCLUSIONS OF LAW 1. The April 29, 1994, rating decision, which denied the veteran's claim of entitlement to service connection for PTSD is not the product of clear and unmistakable error (CUE). 38 U.S.C.A.§ 5109A (West 2004); 38 C.F.R. § 3.105(a) (2004). 2. The April 1994 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2004). 3. The criteria for an effective date prior to October 15, 1999, for the grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5109A, 5110 (West 2002); 38 C.F.R. §§ 3.105, 3.156, 3.400 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (hereinafter "the VCAA") and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. §§ 3.102, 3.159(c)-(d)) (2004). The VCAA and its implementing regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b) (2004). The duties to notify and assist imposed by the VCAA are not applicable to allegations of CUE in RO decisions. Parker v. Principi, 15 Vet. App. 407 (2002). Nonetheless, the veteran has been notified of the laws and regulations governing CUE claims and reasons for the denial of the claims, and all relevant evidence has been associated with the record, the duties to notify and assist have been met. With regard to the effective date claim, the veteran and his representative were provided with a copy of the currently appealed rating decision, the Board's April 2001 remand, a statement of the case, and supplemental statements of the case. These documents provided them with notice of the law and governing regulations as well as the reasons for the determinations made regarding his earlier effective date claim. These documents served to inform them as to what evidence was needed to substantiate the claim. The Board remanded this claim to the AMC in April 2001, in part, for the issuance of VCAA notice to the veteran and his service representative. The AMC provided this VCAA notice to the veteran and his service representative in December 2003. By way of these documents, they were specifically informed of what the evidence needed to show to substantiate the claim, of who was responsible for obtaining what evidence, and to submit relevant evidence in the veteran's possession. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that a claimant is entitled to VCAA notice prior to the initial adverse decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The Court went on to say, however, that "there is no nullification or voiding requirement [of RO decisions issued prior to VCAA notice] either explicit or implicit in this decision." Id. In any event, the veteran in this case was not prejudiced by the delayed notice. If he had submitted additional evidence substantiating his claim, he would have received the same benefit as if he had submitted the evidence prior to initial adjudication. The effective date of any award based on such evidence would have been fixed in accordance with the claim that was the subject of the initial adjudication. 38 C.F.R. § 3.156(b) (2004) (new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision, if a timely appeal has been filed, will be considered as having been filed with the claim, which was pending at the beginning of the appeal period); see also 38 C.F.R. § 3.400(q)(1) (2004) (providing that when new and material evidence is received within the appeal period, the effective date will be set as if the prior denial had not been made). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran, including his service medical records and post- service VA and private medical records. There are no reported records that are not part of the claims folder. As part of the duty to assist under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). In this case, the decision turns on the finality of earlier rating decisions and the dates of claims. Therefore, an examination is not required. Under the circumstances in this case, the veteran has received the notice and assistance contemplated by law. There is no reasonable possibility that further assistance would aid the veteran in substantiating his claim. 38 U.S.C.A. § 5103(A)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); and Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Factual Background The RO denied the veteran's original service connection claim for PTSD (which it characterized as a nervous condition, to include PTSD) by rating decision dated April 29, 1994. In this decision, the RO noted that it had reviewed the veteran's service medical records, his service personnel records, and his VA outpatient treatment records dated between December 1984 and September 1993. When the RO issued this decision to the veteran and his service representative, it included a copy of VA Form 4107, listing the veteran's procedural and appellate rights. As this decision was not appealed, it became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2003). No communication was received from the veteran until October 15, 1999, when he again filed a claim of entitlement to service connection for PTSD. In April 2000, the RO essentially reopened the veteran's previously denied service connection claim for PTSD and granted this claim on the merits. The RO also assigned a 100 percent rating for service-connected PTSD effective October 15, 1999. The veteran contends that the grant of service connection for PTSD should be effective in September 1993, the date that he filed his initial service connection claim. Because the RO ultimately granted this claim, the veteran maintains that it should have been assigned the earlier effective date. He specifically contends that the April 1994 rating decision was erroneous because the RO failed to consider VA outpatient treatment records dated in September 1993 which, according to the veteran, show that he had PTSD then and now. Essentially, the veteran maintains that the April 1994 rating decision should be set aside on the basis of clear and unmistakable error. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105. The RO considered this question in statements of the case issued to the veteran and his service representative in March and August 2004. The veteran also contends that there was clear and unmistakable error (CUE) in the March 2004 rating decision. In this decision, the RO concluded that the failure to assign an effective date earlier than October 15, 1999, for the grant of service connection for PTSD did not constitute CUE. In statements submitted in December 2004 and February 2005, the veteran, by and through his service representative, asserted that the failure to assign an earlier effective date than October 15, 1999, for service-connected PTSD constituted CUE in the March 2004 rating decision. Analysis Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2004). For disability compensation stemming from 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 of separation from active service; otherwise, the effective date is the date of receipt of the veteran's claim or the date that entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2004). Where an allowance is premised on new and material evidence received after a final decision, as in this case, the effective date is the latter of the date of receipt of the reopened claim or the date entitlement arose. 38 C.F.R. § 3.400(q) (2004). The Court has established a three-part test, each of which must be met before clear and unmistakable error is established: (1) 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 [clear and unmistakable error] 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 in part Russell v. Principi, 3 Vet. App. 310 (1992)). In Caffrey v. Brown, 6 Vet. App. 377 (1994), the Court held that VA's failure to comply with the duty to assist veterans in the development of their claims could never constitute clear and unmistakable error. The Court concluded that such a failure only creates an incomplete record but not an inaccurate one. Caffrey, 6 Vet. App. at 383. More recently, the United States Court of Appeals for the Federal Circuit has held that, in order to constitute CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). As an initial step, a claimant asserting clear and unmistakable error must specify the error. It is not enough to merely assert that there was clear and unmistakable error, to make broad-brush allegations of such error, or to assert that the evidence was improperly weighed and evaluated. Rather, the claim must be raised with some degree of specificity. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In this case, the veteran essentially contends that the RO failed to consider evidence that he was diagnosed with PTSD in September 1993, and that this evidence triggered the RO's duty to afford him an examination. A review of the evidence that was before the RO in April 1994 shows that, on VA outpatient treatment on September 15, 1993, the VA clinical psychologist stated that the veteran "exhibits currently signs of PTSD including flashback, hypervigilance, [and] withdrawn behavior." There also is a VA outpatient psychology treatment note dated July 19, 1990, where a medical doctor reports an assessment of "rule-out PTSD." Neither of these cited VA treatment records, nor any of the other medical records that were before the RO in April 1994, contain a diagnosis, assessment or impression of PTSD. The RO specifically noted the September 15, 1993 report in its April 1994 rating decision, but correctly noted that the report did not contain a diagnosis of PTSD. Because the report was noted in the rating decision, it cannot be held that the RO committed CUE by failing to consider that evidence. The veteran further asserts that, based on the purported diagnosis of PTSD in 1993, he was entitled to VA psychiatric examination prior to the April 1994 rating decision. However, this allegation boils down to a claim that the RO failed in its duty to assist by failing to insure that he received a VA examination. A failure in the duty to assist cannot constitute clear and unmistakable error. See Caffrey, supra. In the absence of clear and unmistakable error, the April 1994 decision is final. Since the April 1994 rating decision is final, the claim upon which that decision was based cannot serve as the basis for assignment of an effective date for a subsequent award of service connection. Lalonde v. West, 12 Vet. App. 377 (1999). The veteran's subsequent claim of entitlement to service connection for PTSD was received by the RO on October 15, 1999. As noted above, the effective date for a benefit granted on the basis of a reopened claim is the latter of the date of the reopened claim, or the date of the new and material evidence. Since the reopened claim was received on October 15, 1999, there is no basis of assigning an effective date prior to that date. The Board, thus, finds no basis for assignment of an effective date earlier than October 15, 1999, for the grant of service-connection for PTSD. ORDER The April 29, 1994, rating decision which denied the claim of entitlement to service connection for PTSD is not the product of clear and unmistakable error. An effective date earlier than October 15, 1999, for service- connected PTSD is denied. The claim that clear and unmistakable error occurred in a March 12, 2004, rating decision is dismissed. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs