Citation Nr: 1004548 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 08-10 060A ) DATE ) ) THE ISSUE Whether a June 23, 2004, decision of the Board of Veterans' Appeals (Board) denying entitlement to an effective date earlier than June 6, 2000, for the grant of service connection for posttraumatic stress disorder (PTSD) should be revised or reversed based on clear and unmistakable error (CUE). REPRESENTATION Moving party represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The moving party (hereinafter referred to as "the Veteran") served on active duty from June 1971 to August 1973. This matter is before the Board in response to an April 2008 motion alleging CUE in a June 23, 2004, Board decision, which, in pertinent part, determined that an effective date earlier than June 6, 2000, was not warranted for the grant of service connection for PTSD. FINDINGS OF FACT 1. The June 2004 Board decision denied an effective date prior to June 6, 2000, for the grant of service connection for PTSD. 2. The statutory or regulatory provisions then extant in June 2004 were not correctly applied by the Board, and the failure to apply those laws and regulations effected a result that would have been manifestly different but for the error. CONCLUSION OF LAW The June 23, 2004 Board decision's failure to consider the provisions of 38 C.F.R. § 3.156(c) (2003) was clear and unmistakable error; but for the error, an earlier effective date of October 18, 1982, was warranted for the grant of service connection for PTSD. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 3.156(c), 3.400(q)(2) (2003); 38 C.F.R. § 20.1403 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The Court has held that the VCAA is not applicable to motions for revision of a Board decision on the grounds of CUE. Livesay v. Principi, 15 Vet. App. 165 (2001). Any party to a Board decision can make a motion to have the decision revised or reversed on the grounds of CUE. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400(a), 20.1401(b) (2009). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Rules of Practice of the Board, found at 38 C.F.R. Part 20. Rule 1403, found at 38 C.F.R. § 20.1403, relates to what constitutes CUE and what does not, and provides that: clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a). A finding of CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c). Rule 1403 offers the following examples of situations that are not clear and unmistakable error. (1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision. (2) Duty to assist. The Secretary's failure to fulfill the duty to assist. (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). If the evidence establishes CUE, an undebateable, outcome- determinative error, the prior decision must be reversed or revised, and the decision constituting reversal or revision has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C.A. § 7111. In a decision dated June 23, 2004, the Board determined that an effective date earlier than June 6, 2000, was not warranted for the grant of service connection for PTSD. The Board noted that the Veteran was initially denied service connection for PTSD in an October 1988 Board decision. Thereafter, he attempted to reopen his claim in 1992 and 1998, but was denied in rating decisions issued by the Regional Office (RO) in Baltimore, Maryland, in September 1992 and January 1999. As the Veteran did not appeal either denial of his claim, the Board found that the 1992 and 1999 rating decisions became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2003). The Veteran filed another claim to reopen on June 6, 2000 and was granted entitlement to service connection for PTSD in a January 2002 rating decision, with an effective date of June 6, 2000. The Board concluded that the since the September 1992 and January 1999 rating decisions were final, an effective date earlier than June 6, 2000, was not appropriate based on the 1992 and 1998 claims to reopen. In addition, the record did not establish that a claim to reopen had been received in the period between the January 1999 rating decision denying the claim to reopen and the June 6, 2000, application to reopen. In April 2008 the Veteran filed a motion for revision of the Board's June 23, 2004, decision that complied with the requirements for a valid motion of CUE 38 C.F.R. § 20.1403(a) (2009). The Veteran argued that the Board committed CUE when it did not consider whether an earlier effective date was warranted under the provisions of 38 C.F.R. § 3.156(c) (2003), which authorized an effective date as early as the date of the original claim if a disability award was based on new and material evidence consisting of supplemental service reports or misplaced official service department records. The Veteran argued that the RO's January 2002 rating decision reopened and granted his claim for service connection for PTSD based on additional records submitted by the Veteran that included original service department records. Therefore, the failure of the Board to consider an earlier effective date under 38 C.F.R. § 3.156(c) in June 2004 was CUE. As noted above, a finding of CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b). With respect to 38 C.F.R. § 3.156(c), the Board acknowledges that effective September 6, 2006, the definition of new and material evidence as it pertains to service department records was amended and expanded. The version of 38 C.F.R. § 3.156(c) in effect at the time of the Board's June 2004 decision, together with 38 C.F.R. § 3.400(q)(2), established that the effective date of an award could relate back to the date of the original claim or date entitlement arose when new and material evidence included supplemental reports from the service department or official service department records that had been misplaced. 38 C.F.R. §§ 3.156(c), 3.400(q)(2) (2003). The June 2005 proposal to amend 38 C.F.R. § 3.156(c) stated that § 3.156(c) suggested that reconsideration of a claim may occur only if the service department records "presumably have been misplaced and have now been located." New and Material Evidence, 70 Fed.Reg. 35,388 (proposed June, 20, 2005) (codified at 38 C.F.R. pt. 3). The proposal to amend also noted that in practice, VA did not limit its reconsideration to "misplaced" service department records. VA intended the reference to misplaced records as an example of the type of service department records that may have been unavailable and the proposed revision to § 3.156(c) would remove this ambiguity and reflect current practices. Id. In Vigil v. Peake, 22 Vet. App. 63 (2008), the Court determined that it was appropriate to interpret the pre- amended version of 38 C.F.R. § 3.156(c) in accordance with the clarifying statements contained in the Secretary's proposed rule. Vigil, 22 Vet. App. at 65 (2008). Therefore, although 38 C.F.R. § 3.156(c) (2003) was amended subsequent to the Board's June 2004 decision, the Court and the June 2005 proposal make clear that the interpretation of the regulation was not altered. See 38 C.F.R. § 20.1403(e) (2009). Hence, in determining whether the June 2004 Board decision contains CUE, the Board will not limit its consideration to whether the grant of service connection was based on receipt of only supplemental service records or misplaced official service records, but will instead consider whether any official service records were the basis for the award of service connection. The January 2002 rating decision granting service connection for PTSD noted that the Veteran's claim had been previously denied because the evidence did not establish his diagnoses of PTSD were supported by verified stressors. The decision to reopen and grant the claim was based on additional evidence submitted by the Veteran including medical records, buddy statements, and copies of unit histories for the 377th Air Force Base Wing dated from July to December 1972. These unit histories established that the Bien Hoa Air Base in the Republic of Vietnam was subjected to significant rocket and mortar attacks during the time of the Veteran's Vietnam service with the 377th Air Force. The unit histories submitted by the Veteran constitute official service department records. In Vigil, the Court held that unit records provided to the RO by the U.S. Armed Services Center for Research of Unit Records (USASCRUR) constituted official service department records. Although the records in this case were submitted by the Veteran himself, they are the type of records that are typically provided by the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly USASCRUR). In fact, in June 1985, the RO asked that the U.S. Army and Joint Services Environmental Support Group (ESG), to furnish copies of applicable unit histories as part of a PTSD research request. Instead of providing copies of the unit histories as requested, the ESG summed up the results of their research in a July 1985 letter. The ESG characterized the rocket and mortar attacks against Bien Hoa Air Base during the time of the Veteran's service as occurring on average once every six weeks and involving a relatively small number of shells. Upon review of the unit histories submitted by the Veteran, the RO found in their January 2002 rating decision that the magnitude and measure of the rocket and mortar attacks closely approximated those reported by the Veteran. The RO then determined that satisfactory evidence of the Veteran's claimed stressors had been submitted and reopened and granted the claim. Hence, the award of service connection for PTSD in the January 2002 rating decision was predicated on the official service department records, i.e. unit histories, submitted by the Veteran. As the award of service connection for PTSD in the January 2002 rating decision was based on official service department records, the provisions of 38 C.F.R. § 3.156(c) (2003) were for application and should have been considered by the Board in its June 2004 decision denying an earlier effective date for the grant of service connection. Therefore, the regulatory provisions extant at the time of the June 2004 Board decision were incorrectly applied. 38 C.F.R. § 20.1403(a). In addition, the Board's failure to consider 38 C.F.R. § 3.156(c) was outcome determinative as the decision would have been manifestly different if the law was correctly applied. As noted above, 38 C.F.R. § 3.156(c)(2003), together with 3.400(q)(2), provided that the effective date of an award of service connection based on new and material evidence consisting of service department records, was the later of the date entitlement arose or the date of receipt of the earlier claim. The Veteran's initial claim for service connection for PTSD was received on October 18, 1982. The medical evidence of record establishes that the earliest evidence of PTSD dates from October 15, 1982, when the Veteran complained of symptoms associated with classic PTSD based on his combat experiences in Vietnam during a psychiatric examination at the Martinsburg VA Medical Center (VAMC). The correct effective date for the grant of service connection for PTSD is therefore October 18, 1982, the date his initial claim was received and several days after entitlement to PTSD arose. With application of 38 C.F.R. § 3.156(c), an earlier effective date of October 18, 1982, is warranted for the grant of service connection for PTSD. CUE has been found in the June 23, 2004, Board decision insofar that it denied entitlement to an effective date earlier than June 6, 2000, for the grant of service connection for PTSD. ORDER There was CUE in the June 23, 2004, Board decision; that decision is amended to the extent that an earlier effective date of October 18, 1982, is granted for the award of service connection for PTSD. ____________________________________________ Mary Gallagher Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs