Citation Nr: 1116866 Decision Date: 05/02/11 Archive Date: 05/10/11 DOCKET NO. 08-27 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether there was clear and unmistakable error (CUE) in a May 1998 rating decision that denied an effective date earlier than August 11, 1992 for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney at Law ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active military service from October 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. The Veteran in this case served on active duty from October 1965 to August 1967. 2. The Veteran filed his original claim for service connection for "bad nerves" and "anxiety" and "unable to adjust to society" in September 1984. The RO interpreted this as a claim for service connection for PTSD. 3. The RO denied the Veteran's service connection for PTSD claim in December 1989, February 1990, and April 1991 rating decisions. These denials were confirmed by a July 1991 Board decision. The Veteran did not appeal the Board decision. This Board decision was therefore final. 4. The RO received the Veteran's claim to reopen service connection for PTSD on August 11, 1992. 5. The RO granted service connection for PTSD in a May 1998 rating decision, and established an effective date of August 11, 1992, the date of receipt of the claim to reopen. 6. The motion for CUE is based the RO's failure in the May 1998 rating decision to consider the provisions of 38 C.F.R. § 3.156(c). Specifically, the CUE allegation centers on the fact that the RO's award of service connection for PTSD was based on the receipt of additional service department unit records in 1994 from the U.S. Army & Joint Services Environmental Support Group, which verified the Veteran's in-service PTSD stressors. These additional service department records, by law, allow for reconsideration of the earlier Board and RO adjudications. 7. The law then in effect at the time of the May 1998 rating decision under 38 C.F.R. § 3.156(c) was incorrectly applied. In fact, the correct law under 38 C.F.R. § 3.156(c) was not applied at all by the RO when it assigned the effective date for the award of service connection for PTSD. The moving party has also demonstrated that the result would have been manifestly different but for the error. 8. Therefore, the PTSD claim should have been reconsidered on a de novo basis in the May 1998 rating decision, with the potential of an earlier effective date retroactive to the original September 1984 claim, or the date of entitlement, whichever is later. 9. In the present case, the date entitlement arose for PTSD (March 10, 1989), is later than the date the original claim for service connection for PTSD was received (September 7, 1984). As such, March 10, 1989 is the proper effective date. CONCLUSIONS OF LAW 1. There is clear and unmistakable error in the May 1998 rating decision that denied an effective date earlier than August 11, 1992 for the award of service connection for PTSD. 38 U.S.C.A. §§ 5109A(a), 7105 (West 2002); 38 C.F.R. §§ 3.104(b), 3.105(a) (2010); 38 C.F.R. §§ 3.156(c), 3.400 (1997). 2. The requirements are met for an earlier effective date of March 10, 1989, for the award of service connection for PTSD. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.156(c), 3.304(f), 3.400 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002 & Supp. 2010), and its implementing regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010), are not applicable to claims alleging CUE in prior VA decisions. See Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001). In fact, in an August 2007 attorney letter and in the March 2007 CUE motion, the Veteran's attorney acknowledged that the Veteran was not entitled to VCAA notice or assistance in the present case. Therefore, no further discussion of the VCAA duty to notify and assist is warranted here. Governing Laws and Regulations for CUE in a Rating Decision A rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302 (2010). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. 38 U.S.C.A. § 5109A; 38 C.F.R. §§3.104(b), 3.105(a). If an earlier decision contained clear and unmistakable error, the prior decision will be reversed or amended, and for the purposes of authorizing benefits, the rating or adjudicative decision that constitutes a reversal of the prior decision on the grounds of clear and unmistakable error has the same effect as if the correct decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.105(a); 3.400(k). A claim of clear and unmistakable error is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1997). Therefore, a claimant who seeks to obtain retroactive benefits based on clear and unmistakable error has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). See also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion before the Court in a claim of clear and unmistakable error). Clear and unmistakable error 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensured, the error complained of cannot be clear and unmistakable. Id. The claimant must offer some persuasive reasons as to why the result would have been manifestly different but for the alleged error, unless it is the kind of error that, if true, would be clear and unmistakable on its face. Baldwin v. West, 13 Vet. App. 1, 5 (1999); Fugo, 6 Vet. App. at 44. Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). In order to find clear and unmistakable error in a prior adjudication, it must be determined (1) that either the correct facts known at the time or constructively known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the prior decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Grover v. West, 12 Vet. App. 109, 112 (1999); Russell, 3 Vet. App. at 313-14. A determination that there was clear and unmistakable error must be based upon the record and the law that existed at the time of the prior adjudication in question. May v. Nicholson, 19 Vet. App. 310, 313 (2005). That is, the laws in effect at the time of the RO or Board decision being attacked should be used. See, e.g., Fournier v. Shinseki, 23 Vet. App. 480 (2010) (finding that it was not clear and unmistakable error to determine that a claim was not pending when the regulations pertaining to notice and denial at the time of such notice were followed). A breach of the VA's duty to assist cannot form a basis for a claim of clear and unmistakable error. Baldwin, 13 Vet. App. at 7; Shockley v. West, 11 Vet. App. 208, 213 (1998); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). Such a breach creates only an incomplete rather than an incorrect record. See Caffrey, 6 Vet. App. at 382. In order to reasonably raise a claim of clear and unmistakable error, the claimant must provide some degree of specificity as to what the alleged error is. If a claimant fails to adequately plead a CUE claim, the proper remedy is to dismiss the challenge without prejudice. Simmons v. Principi, 17 Vet. App. 104, 114 (2003). Analysis - CUE in May 1998 Rating Decision In a May 1998 rating decision, the RO denied granted service connection for PTSD. An effective dated was assigned for this award based on the date the Veteran's claim to reopen service connection for PTSD was received, that is, August 11, 1992. See 38 U.S.C.A. § 5110(i) (West 1991); 38 C.F.R. §§ 3.400(q)(1)(ii), 3.400(r) (1997). It is undisputed that the Veteran did not appeal the May 1998 rating decision within one year. Therefore, the May 1998 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. Accordingly, it is only subject to reversal or amendment if it contains CUE. 38 C.F.R. § 3.105(a). The moving party and his attorney maintain that in the May 1998 rating decision the RO committed CUE by failing to consider the correct law when it assigned the effective date for the award of service connection for PTSD. They allege that under 38 C.F.R. § 3.156(c) and 38 C.F.R. § 3.400(q)(2), an earlier effective date for the award of service connection for PTSD should have been assigned by the RO, due to the receipt of newly-discovered service department records. Specifically, since the RO's May 1998 rating decision that granted service connection for PTSD relied upon the 1994 submission of additional service department unit records to corroborate the Veteran's in-service PTSD stressors, the RO should have applied 38 C.F.R. § 3.156(c) in assigning the earliest possible effective date. Thus, they maintain the effective date of the award should be retroactive to the date VA received the original claim for service connection for PTSD - September 7, 1984. In summary, the moving party and his attorney assert that (1) the RO failed to apply or incorrectly applied the correct law regarding effective dates in May 1998; and (2) had the correct law been applied, the result would have been manifestly different but for the error. In other words, they maintain the RO's error in the May 1998 rating decision undebatably changed the outcome of the effective date assigned for PTSD. The moving party's ultimate goal is retroactive compensation of service-connected PTSD benefits back to 1984, the date of the original claim. See March 2007 motion for CUE; April 2007 Veteran statement; January 2008 Notice of Disagreement (NOD); attorney legal briefs and letters dated in April 2009, January 2011, and February 2011. As a threshold matter, the Board finds that the arguments advanced by the Veteran through his attorney in the March 2007 motion for CUE allege CUE with the requisite specificity. See Simmons, 17 Vet. App. at 114. The Board will therefore adjudicate the merits of his CUE claim. As a threshold matter, the Board sees that in a November 2002 Board decision, the Board previously denied the issue of whether there was CUE in the May 1998 rating decision that denied an effective date earlier than August 11, 1992 for the award of service connection for PTSD. However, this denial of CUE was based on a separate and distinct CUE theory from the one presently being argued. That is, the Veteran's earlier CUE motion was based on VA's alleged failure to fulfill the duty to assist, which is not the current theory of CUE being asserted. See e.g., earlier June 2000 CUE motion. Once there is a denial of a CUE claim, under the principle of res judicata, the same claim cannot be raised again. See Link v. West, 12 Vet. App. 39, 44 (1998); Russell v. Principi, 3 Vet. App. 310, 315 (1992) ("[o]nce there is a final decision on the issue of 'clear and unmistakable error' because the [agency of original jurisdiction] decision was not timely appealed, or because a [Board] decision not to revise or amend was not appealed to this Court, or because this Court has rendered a decision on the issue in that particular case, that particular claim of 'clear and unmistakable error' may not be raised again."); see also Flash v. Brown, 8 Vet. App. 332, 341 (1995). However, the principle of res judicata bars refiling only as to that particular assertion of CUE; it does not prohibit a claimant from presenting another theory of CUE so long as it is separate and distinct. Flash, 8 Vet. App. at 341; Andre v. Principi, 301 F.3d. 1354, 1361 (Fed. Cir. 2002). In fact, in Hillyard v. Shinseki, No. 08-1733 (U.S. Vet. App. Mar. 29, 2011), the Court recently reiterated VA's position that the number of motions to revise based on clear and unmistakable error that a claimant may bring against a RO decision (as opposed to a Board decision), is unlimited, so long as each new challenge involves a distinct theory of clear and unmistakable error. Therefore, the Veteran is not barred in the present case from alleging a new theory of CUE since it is separate and distinct from the previous theory. At the time of the May 1998 rating decision, applicable VA law provided that the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (1997). But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). Applicable VA law provided that the proper effective date for new and material evidence other than service medical records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (i) (West 1991); 38 C.F.R. §§ 3.400(q)(1)(ii), 3.400(r) (1997). In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). However, the versions of 38 C.F.R. § 3.156(c) and 38 C.F.R. § 3.400(q)(2), in effect at the time of the RO's May 1998 rating decision, also established that when new and material evidence included supplemental reports from the service department or official service department records that had been misplaced, the effective date of an award could relate back to the date of the original claim or date entitlement arose, whichever is later. See 38 C.F.R. §§ 3.156(c), 3.400(q)(2) (1997). That is, under the earlier version of 38 C.F.R. § 3.156(c) (1997), where the new and material evidence consists of a supplemental report from the service department received before or after the decision has become final, the former decision will be reconsidered by the adjudication agency of original jurisdiction. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as may be affected by the filing date of the original claim. The Court has clarified that this regulation potentially applies in PTSD cases where the RO has obtained stressor verification records from the Army & Joint Services Records Research Center (JSRRC). See Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008). The Court also recently held that under either the pre-amended or current version of 38 C.F.R. § 3.156(c), a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim. Mayhue v. Shinseki, No. 09-0014 (U.S. Vet. App. Jan. 18, 2011). The Board notes that the regulation pertinent to this situation, 38 C.F.R. §3.156(c), was amended, effective October 6, 2006. See 71 Fed. Reg. 52,455-52,457 (Sept. 6, 2006). Regardless, this amendment was mostly clarifying in nature. Moreover, in the present decision, an analysis as to whether there was clear and unmistakable error must be based upon the record and the law that existed at the time of the prior May 1998 adjudication in question. May, 19 Vet. App. at 313. Therefore, the Board will specifically consider the earlier version of 38 C.F.R. §3.156(c) in effect at the time of the May 1998 rating decision. As to PTSD, applicable VA law in May 1998 provided that service connection for PTSD required: (1) medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1997). The Board finds the May 1998 rating decision that assigned an August 11, 1992 effective date for the award of service connection for PTSD contains CUE. See 38 C.F.R. § 3.105(a). In this regard, the Board concedes that the RO committed error in its May 1998 rating decision when it failed to address the correct laws for effective dates based on the receipt of additional service department records. See 38 C.F.R. § 3.156(c) (1997) and 38 C.F.R. § 3.400(q)(2) (1997). A short description of the history of the PTSD claim is as follows: The Veteran filed his original claim for service connection for "bad nerves" and "anxiety" and "unable to adjust to society" in September 1984. The RO interpreted this as a claim for service connection for PTSD. The RO denied the Veteran's service connection for PTSD claim in December 1989, February 1990, and April 1991 rating decisions. These denials were confirmed by a July 1991 Board decision. The Board found that although there was a current medical diagnosis of PTSD, there was no "persuasive" evidence of an in-service stressor. As such, service connection for PTSD was denied. The Veteran was given notice of the Board denial and of his appellate rights at his address of record, but he did not initiate an appeal or request reconsideration of the Board decision. Thus, at this juncture of the analysis, the earlier RO decisions and the July 1991 Board decision were therefore final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1100, 20.1103, 20.1104. The RO received the Veteran's claim to reopen service connection for PTSD on August 11, 1992. The RO eventually granted service connection for PTSD in a May 1998 rating decision, and established an effective date of August 11, 1992, the date of receipt of the claim to reopen. The RO's award of service connection for PTSD was based on the receipt of additional service department unit records in 1994 from the U.S. Army & Joint Services Environmental Support Group (ESG), which verified the Veteran's in-service PTSD stressors. (In more recent times, the ESG is identified as either the U.S. Armed Services Center for Research of Unit Records (USASCURR) or the Joint Services Records Research Center (JSRRC). These service unit records provided the missing PTSD element of verified in-service stressors as they revealed that the Veteran experienced combat during service. Since the award of service connection for PTSD in the May 1998 rating decision was based on official service department records, the provisions of 38 C.F.R. § 3.156(c) (1997) and 38 C.F.R. § 3.400(q)(2) (1997) were for application and should have been considered by the RO when it assigned the effective date for PTSD. The RO assigned the effective date based on the August 11, 1992 claim to reopen. But the former December 1989, February 1990, and April 1991 rating decisions and July 1991 Board decision should have been reconsidered. That is, these prior decisions on service connection for PTSD are not final as they did not include a review of all of the Veteran's relevant service department records - in particular, the ESG unit records secured in 1994, which confirmed the Veteran's in-service PTSD stressors. Under 38 C.F.R. § 3.156 (c), these unit records were a basis for reconsideration of the PTSD claim and a basis for the granting of an earlier effective date. In other words, new and material evidence was not necessary to reopen the original September 1984 PTSD claim; rather, this claim should simply have been reviewed on a de novo basis. See 38 C.F.R. § 3.156(c) (1997); 38 C.F.R. § 3.400(q)(2) (1997); Vigil, 22 Vet. App. at 66-67. Therefore, the regulatory provisions extant at the time of the May 1998 rating decision were incorrectly applied. In short, the RO in May 1998 committed legal error. In addition, the RO's failure to consider 38 C.F.R. § 3.156(c) was outcome determinative as the decision as to the effective date assigned would have been manifestly different if the law was correctly applied. Fugo, 6 Vet. App. 43-44. That is, the outcome of the Veteran receiving an earlier effective date earlier than August 11, 1992 would have been undebatable at that time. Reasonable minds could not have differed as to whether the law in May 1998 entitled the Veteran to an earlier effective date. Therefore, the error committed by the RO in failing to address the provisions of 38 C.F.R. § 3.156(c) was clear and unmistakable. Fugo, 6 Vet. App. 43-44. As noted above, 38 C.F.R. § 3.156(c) (1997), together with section 3.400(q)(2) (1997), provided that the effective date of an award of service connection based service department records, was the later of the date entitlement arose or the date of receipt of the earlier claim. The additional unit records submitted in 1994 falls into the exception created by 38 C.F.R. § 3.156(c) and the Veteran's September 7, 1984 claim was therefore considered pending. See 38 C.F.R. § 3.156(c); Vigil, 22 Vet. App. at 66-67. In conclusion, the Board finds clear and unmistakable error in the May 1998 rating decision as to the August 11, 1992 effective date assigned for the award of service connection for PTSD. 38 C.F.R. § 3.105(a). Now that CUE in the May 1998 RO decision is established, the Board now turns to the remaining issue of the proper effective date to be assigned. The Veteran filed his original claim for service connection for "bad nerves" and "anxiety" and "unable to adjust to society" on September 7, 1984. Although the Veteran did not specifically mention PTSD in the September 1984 claim, it appears that the Veteran's first documented PTSD diagnosis in 1989 arises from the same symptoms for which the Veteran was seeking benefits for in September 1984, and does not relate to an entirely separate claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). That is, in order to identify the benefit sought, the claimant may satisfy this requirement by referring to "a body part or system" that is disabled, or by describing the symptoms of that disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Board believes the earlier September 7, 1984 application was equivalent to a claim for service connection for PTSD, as the nerves and anxiety he complained of have been demonstrated to be secondary to underlying, chronic PTSD. See VA and Social Security Administration (SSA) medical records dated in the 1990s. In Clemons, the Court stated that "as a self-represented layperson at the time his claim was filed, the appellant neither had the legal or medical knowledge to narrow the universe of his claim or his current condition to PTSD." Clemons, 23 Vet. App. at 4. The Court emphasized that it is generally within the province of medical professionals to diagnose or label a mental condition, not the claimant. Id. at 5. In summary, the Veteran's September 1984 application could be construed as "evidencing a belief in entitlement" to compensation for PTSD, when reading this document sympathetically. 38 C.F.R. § 3.1(p). In addition, the claims folder contains no other communication from the Veteran or his representative indicating intent to seek, or a belief in entitlement to, service connection for PTSD from the time of discharge from service in August 1967 until September 7, 1984, the date of his original claim. 38 C.F.R. §§ 3.1(p), 3.155(a); Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57. The Board's actions are bound by the applicable law and regulations as written and has no power to grant benefits not authorized by law. 38 U.S.C.A. § 7104(c). The Veteran's attorney has requested that the effective date should be retroactive to this original September 7, 1984 claim. But once again, the effective date of an award due to the additional service department records in the present case could relate back to the date of the original claim or date entitlement arose, whichever is later. See 38 C.F.R. §§ 3.156(c), 3.400(q)(2) (1997). The date of entitlement is based on the legal requirements for PTSD at the time of the May 1998 rating decision: (1) medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1997). Although the unit records that verified the Veteran's stressors have been available since the time of the Veteran's military service, there was no medical evidence establishing a clear diagnosis of PTSD related to his stressors until a VA psychiatric evaluation dated on March 10, 1989. As such, the criteria for entitlement to service connection for PTSD were not met until March 10, 1989. Here, the date of entitlement arose (March 10, 1989), is later than the date of claim (September 7, 1984). As such, the proper effective date for the award of service connection for PTSD that should have been awarded in the May 1998 rating decision is March 10, 1989, the date of entitlement. See 38 C.F.R. §§ 3.156(c), 3.400(q)(2) (1997). ORDER As the Board has found clear and unmistakable error in a May 1998 rating decision pertaining to the effective date assigned for service connection for PTSD, an earlier effective date of March 10, 1989, for the award of service connection for PTSD is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs