Citation Nr: 0201433 Decision Date: 02/12/02 Archive Date: 02/20/02 DOCKET NO. 01-02 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the rating decision of August 19, 1994, wherein the RO denied entitlement to service connection for post- traumatic stress disorder (PTSD) constituted clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active military service from July 1966 to July 1970. The current appeal arose from a January 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO determined that the August 19, 1994 rating decision wherein entitlement to service connection for PTSD was denied did not constitute CUE. The veteran and his wife provided oral testimony before the undersigned Member of the Board of Veterans' Appeals (Board) via a video conference at the RO in November 2001, a transcript of which has been associated with the claims file. FINDINGS OF FACT 1. The veteran did not appeal the August 19, 1994 rating decision wherein the RO denied entitlement to service connection for PTSD. 2. The record available to the RO in August 1994 showed a clear diagnosis of PTSD linked to military service, the veteran's receipt of the Combat Action Ribbon (CAR) and other supportive evidence; under the applicable adjudication procedures this evidence was undebatable and in rejecting the claim, the RO did not utilize a valid exercise in rating judgment. 3. The rating decision of August 19, 1994 did contain an error in the application of law, that when called to the attention of later reviewers, compels the conclusion that the result would have been manifestly different, but for the error in failing to grant service connection for PTSD. CONCLUSION OF LAW The August 19, 1994 rating decision wherein the RO denied entitlement to service connection for PTSD did constitute CUE. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.105(a), 3.304(f) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background The RO presented the Board with a reconstructed record. The RO assembled the record after receiving the veteran's June 2000 letter, wherein he asserted the RO committed CUE when it denied his claim in August 1994, and other documents. The records initially received from the veteran consisted of a copy of an August 19, 1994 rating decision wherein the RO denied entitlement to service connection for PTSD, and the notice that the RO issued on August 25, 1994. Other records he submitted were a copy of his DD Form 214 MC (hereafter Form 214) and a VA document titled "PSYCHOLOGICAL EVALUATION FOR PTSD" (no date), which the veteran believed was his first evaluation for PTSD. The Form 214 showed his specialty number and title was "2542 CommCenMan" and that his decorations, etc. included the Combat Action Ribbon (CAR), the Vietnam Campaign Medal w/device and the Vietnam Cross of Gallantry w/palm. The RO then obtained VA clinical records beginning in June 1999, and a contemporaneous psychiatry examination that showed the diagnosis of chronic PTSD linked to military service. The RO issued a rating decision in November 2000 wherein it granted service connection for PTSD and a 70 percent disability rating from July 13, 2000. The RO noted that service connection was warranted based on the CAR, which validated the stressors, and the VA psychiatry examination that found PTSD linked to military service. In response to the RO notice, the veteran provided another copy of the August 1994 rating decision and the psychological evaluation. The RO then requested VA outpatient records from December 1993 to July 1999. The clinical records from the Lufkin VA facility prior to August 19, 1994 showed the diagnostic impression of PTSD in July 1994 and June 1994, with an evaluation, including PTSD scale and Minnesota Multiphasic Personality Inventory (MMPI), completed in April 1994. An entry in April 1994 noted a psychiatrist at Memorial Hospital referred him to VA. In February 1994 it was reported that he attended a weekly Vietnam support group consistently for the previous month. The records begin in December 1993, and include another copy of the psychology evaluation and an undated, handwritten "TRAUMA HISTORY" wherein he was asked to describe in detail three events he felt were the most traumatic and distressing and effects on his life to the present time. The one-page document described two incidents from Vietnam related to action in April 1969 and July 1969. The aforementioned psychology evaluation shows the Director, VA Mental Health Clinic, Lufkin, Texas prepared it in connection with the veteran's PTSD claim. It was noted that the veteran's active membership in a PTSD group was since mid December 1993, and being seen individually by a staff member regularly provided many hours of direct observation. In summary, the clinician opined that the veteran met diagnostic criteria for the PTSD diagnosis based on observation and the results of a battery of diagnostic tests. It was noted in the report that he served as a squad leader, fire team leader, machine gun captain and radio operator, that he reported "three incidence of exposure to extreme trauma" and that his citations included the CAR, Vietnam Campaign Medal and Vietnam Cross of Gallantry. The report described information that supported the "symptoms" for the PTSD diagnosis, summarized various test results and advised that he met the criteria for the PTSD diagnosis based on the evaluation. The August 19, 1994 rating decision had listed under the heading "EVIDENCE", a VA examination dated July 11, 1994 from the VA Medical Center, Temple, Texas, service medical records 1966 to 1970, and treatment records from Memorial Medical Center from January 1, 1993 to October 6, 1993. In denying service connection for PTSD, the rating board recited the regulatory criteria then in effect. The rating board reasoned that his "military records" did not show evidence of his service as a squad leader, fire team leader, machine gun captain but that he was a communications man assigned to a communications center. Further that although he received the CAR, the rest of his military records did not show "evidence of direct combat" and that the history of expeditions "(in the service records)" showed he was involved in only one operation at DaNang. The rating board found there was "no evidence" in the military records to support the incidents revealed at the VA examination, and that the veteran had not provided detailed information that could be verified. The rating board noted that he had not responded to a March 1994 letter that "requested the detailed information" to process his claim. It was reported in the rating decision that the records from Memorial Medical Center did not show evidence of PTSD, and that JH had not responded to a request for records. A copy of the rating decision was enclosed with the RO notice. The RO in January 2001 reviewed the August 19, 1994 rating decision, and found it did not constitute CUE. The RO indicated that the Lufkin outpatient records were considered in addition to the rating decision. The RO determined that the August 1994 decision was based on the criteria used at the time, and the judgment of the decision-maker and was not shown to be fatally flawed when made. At the Board hearing, the veteran recalled that he did not respond to a RO letter he had received in 1994, but that a representative, who worked for VA, told him to obtain an affidavit from men he served with, but that he could not afford search fees (Transcript (T) 2-3, 7-8). He stated that he had completed a stressor statement at the Lufkin clinic, and that it should have been in the record (T 4). He recalled that in 1994, psychologists and psychiatrists evaluated him and told him he had PTSD and gave him a letter stating this, and that the evaluation would be sent to Houston (T 5). The veteran stated he was frustrated after the 1994 decision, but had a job and did not want to be "hassled with it" anymore (T 6). The veteran submitted another copy of the previously mentioned "TRAUMA HISTORY" at the Board hearing. Criteria General Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303 (2001). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2001). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (2001). In determining whether an injury or disease was incurred in or aggravated in service, the evidence in support of the claim is evaluated based on the places, types and circumstances of service as shown by service records, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a)(West 1991); 38 C.F.R. §§ 3.303(a), 3.304 (2001). The versions of the law and regulations in effect on August 19, 1994 are in accord with the current versions cited above. PTSD Service connection for post-traumatic stress disorder requires medical evidence establishing a clear 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. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. Additionally, if the claimed stressor is related to the claimant having been a prisoner-of-war, prisoner-of-war experience which satisfies the requirements of Sec. 3.1(y) of this part will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f), effective prior to March 7, 1997; added at 58 Fed. Reg. 29110, effective May 19, 1993). A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 1991 & Supp. 2001); in accord, the version in effect on August 19, 1994. A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in Rule 302 (§ 20.302 of this part). 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 in effect on August 19, 1994. Previous determinations which 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. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a) (1994). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a) (1994). VA regulations provide that "previous determinations which are final and binding...will be accepted as correct in the absence of clear and unmistakable error." 38 C.F.R. § 3.105(a). Where evidence establishes such error, the prior decision will be reversed or amended. Id. "Clear and unmistakable error" requires more than a disagreement on how the facts are weighed or evaluated; the appellant must show that the correct facts, as they were known at the time, were not before the adjudicator or that pertinent regulatory or statutory provisions were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). In addition, "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. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A claim that the evidence was not properly weighed or evaluated cannot constitute clear and unmistakable error, and the allegation of clear and unmistakable error must specifically state what error and how the outcome would have been manifestly different. Id. at 44. The determination regarding clear and unmistakable error must be made based on the record and the law that existed at the time the decision was made. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 314. Evidence that was not of record at the time of the decision cannot be used to determine if clear and unmistakable error occurred. Porter v. Brown, 5 Vet. App. 233 (1993). For purposes of determining whether clear and unmistakable error 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 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 (1994). Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a), in effect on August 19, 1994. "Notice" means written notice sent to a claimant or payee at his latest address of record. 38 C.F.R. § 3.1(q) (1994). (a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3. (b) The right to notice--(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision. 38 C.F.R. § 3.103(a), (b)(1) (1994). Analysis Duty to Assist There have been changes in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA) now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West Supp. 2001). Among other things, this law redefines the obligations of VA with respect to the duty to assist and supersedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order). However, the Board must observe that the VCAA is not applicable to CUE claims/motions which the veteran relies on to compel reversal of the August 19, 1994 RO rating decision. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). However, Board will note that the RO notified the appellant of the evidence considered in its review of the CUE claim through a statement of the case, and other correspondence pertinent to the current claim. The appellant was afforded the opportunity to submit arguments in support of the claim, and in fact did so. The appellant also appeared at a Board hearing. He was given ample opportunity to identify evidence that could support the claim and did identify such evidence from VA records. Thus, in light of his statements and the development completed at the RO, the Board finds that the relevant evidence has been identified and obtained. The Board finds that VA can provide no further assistance that would aid in substantiating the claim, as the CUE issue essentially turns on the interpretation of evidence of record and the application of the law and regulations in effect in 1994 to that evidence. The veteran has not indicated the likely existence of any evidence that has not already been obtained that would be crucial in the claim from the standpoint of substantiating compliance with the applicable law or VA regulations as they existed in 1994. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The veteran has not identified any other relevant records to warrant an expenditure of additional adjudication resources. Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Further, he has not disputed that VA has completed the development required. See Dixon v, Gober, 14 Vet. App. 168, 173 (2000); Davis v. West, 13 Vet. App. 178, 184 (1999); Earle v. Brown, 6 Vet. App. 558, 562 (1994). The Board finds, therefore, that VA has fulfilled its obligation to the appellant, informing him of the reasoning against CUE, providing the pertinent VA regulations and obtaining relevant evidence. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). CUE The veteran and his representative argue, in essence, that the RO in August 1994 committed CUE when it denied service connection for PTSD since the evidence compelled service connection. The RO addressed the CUE claim in the January 2001 decision. There are currently two statutorily authorized means to obtain reevaluation of a final VA benefit decision. A final decision disallowing a claim may be revised based upon a showing of CUE in a prior decision by the Secretary or the Board pursuant to 38 U.S.C.A. §§ 5109A and 7111, respectively, or reopened based upon submission of new and material evidence pursuant to 38 U.S.C.A. § 5108. The Board observes that Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) created a nonstatutory means to obtain review of a previously denied claim, holding that while a breach of the duty to assist is not the type of error that can provide the basis for a CUE claim in accordance with this Court's case law, in cases of grave procedural error, RO or Board decisions are not final for purposes of direct appeal. Id. at 1333. In Hayre the Circuit Court held that a breach of the duty to assist in which VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error of, at least, comparable gravity that vitiates the finality of an RO decision for purposes of direct appeal. The United States Court of Appeals for Veterans Claims (Court), interpreting the reach of Hayre in Simmons v. West, 14 Vet. App. 84, 91 (2000), noted that at some point, there is a need for finality within the VA claims adjudication process; thus, the tolling of finality should be reserved for instances of "grave procedural error"--error that may deprive a claimant of a fair opportunity to obtain entitlements provided for by law and regulation. The holding in Hayre as explained in Tetro v. Gober, 14 Vet. App. 100 (2000) provided for review of unappealed decisions where grave procedural error had occurred so as to render the decision nonfinal. In Hayre the vitiating error was failure to assist in obtaining specifically requested service medical records and failure to provide the claimant with notice explaining the deficiency. A later en banc panel requested briefs addressing the validity of Hayre as law and the question of whether a failure of the duty to assist under the law and regulations applicable at the time can constitute clear and unmistakable error under 38 U.S.C.A. § 5109A. Cook v. Principi, No. 00-7171 (Fed. Cir. January 4, 2002) (en banc). In any event, the CUE arguments in the instant case fail to raise any specific allegation of a Hayre error. Other examples of grave procedural error referred to in Tetro were Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (failure to provide a statement of the case after receiving a notice of disagreement); Hauck v. Brown, 6 Vet. App. 518, 519 (1994) (failure to provide notification of denial tolls period to file a notice of disagreement); Kuo v. Derwinski, 2 Vet. App. 662, 666 (1992) (failure to send statement of the case to accredited representative tolled 60 day period to respond) and Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992) (evidence sufficient to rebut presumption of administrative regularity for mailing of appeal notice). None of these apply to the facts at hand regarding the 1994 RO rating decision. There is no argument that the appellant did not receive adequate notice and appeal rights as provided in the regulations in effect at that time. He does allude through his testimony to being the victim of bad advice or misinformation regarding the claim, but such advice cannot estop the government from denying a benefit. See, for example, Bone v. Brown, 9 Vet. App. 446 (1996); Walker v. Brown, 8 Vet. App. 356 (1995); Lozano v. Derwinski, 1 Vet. App. 184, 186 (1991). However, equitable tolling may be an available remedy if the appellant can show VA misled him, and that he reasonably relied on the misrepresentation by neglecting to file an appeal. The evidence, in particular his testimony directed to his failure to appeal the 1994 decision, does not show that. See for example McCay v. Brown, 106 F.3d 1577, 1582 (Fed. Cir. 1997) and Elsevier v. Derwinski, 1 Vet. App. 150, 153-55 (1991), interpreting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990), see also Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998). Since none of these alternative bases apply here, the Board will turn to the claim of CUE. The Board believes it is important to recognize what constitutes CUE and what does not. CUE is a very specific and rare 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. In essence it is undebatable 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. See for example Fugo, 6 Vet. App. at 43. Further, review for CUE in a prior RO decision must be based on the record and the law that existed when that decision was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. For example, changed diagnosis, failure to fulfill the duty to assist and a disagreement as to how the facts were weighed or evaluated are not examples of CUE. Nor does CUE include the otherwise correct application of a statute or regulation where, subsequent to the RO decision, there has been a change in the interpretation of the statute or regulation. In this case, the 1994 version of 38 C.F.R. § 3.304(f) is applicable. It provided in pertinent part that: "If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor." The regulation as proposed was intended to fill the regulatory void on this matter that had been administered through various procedural guidelines which the VA General Counsel concluded constituted substantive rules. VA felt that certain types of evidence were sufficient to substantiate a stressor incurrence where events could never be fully documented, such as in combat. The VA Secretary determined that when service department records indicated the veteran engaged in combat or was awarded a combat citation and the claimed stressor was related to combat experience further development to document the occurrence of the claimed stressor is unnecessary. See 57 Fed. Reg. 34536 (August 5, 1992) and VAOPGCPREC 7-92 (hereafter O.G.C. Prec. 7-92). In issuing the final rule, VA noted that in providing that evidence establishing the claimed circumstances under which an alleged stressor occurred was sufficient to substantiate the occurrence, the rule was consistent with the VA Secretary's authority under 38 U.S.C.A. § 501(a) and the provisions of 38 U.S.C.A. § 1154(b). See 58 Fed. Reg. 29110 (May 19, 1993). The Board observes that a June 1992 transmittal sheet (Change 2, June 7, 1992) noted that VA Adjudication Procedure Manual M21-1 (hereafter M21-1), Part III, para. 5.14a(3) provided for a presumption of adequate stressors to support a diagnosis of PTSD in certain circumstances but that in light of VAOPGCPREC 7-92, the procedural manual was not binding on the Veterans Benefits Administration. It was also noted that rules were being published to "provide the necessary regulatory support for the presumption of adequate stressors" and that in the meantime "automaticness" of the stressor presumption may not be cited in support of a grant of service connection for PTSD. Other procedural guidelines in the applicable version of M21- 1, Part VI, para. 7.46e (Change 16, September 20, 1993) essentially provided that if a claimed stressor was related to combat, in the absence of information to the contrary, receipt of the Purple Heart, Combat Infantryman Badge, or other similar citation was considered supportive evidence of participation in a stressful episode. It was provided in para. 7.46f, in referring to the previous paragraph, that if evidence showed the veteran engaged in combat with the enemy, and the claimed stressor was related to combat, it was not necessary to further develop for evidence of a stressor. Paragraph 7.46 was revised in March 1995 (Change 32) to specify additional military decorations, including the CAR, as evidence of participation in a stressful episode and clarify proper disposition and claims development as a result of the decision in Doran v. Brown, 6 Vet. App. 283 (1994), decided March 8, 1994. As revised and redesignated paragraph 7.46c, it essentially provided that if a claimed stressor was related to combat, in the absence of information to the contrary, receipt of any of the listed individual decorations will be considered evidence of participation in a stressful episode. Any development for stressor evidence was to be accomplished under M21-1, Part III, para. 5.14. The version of paragraph 5.14 published prior to May 1995 revisions (Change 38) instructed that inservice traumatic stressors did not have to be documented with absolute certainty but the evidence had to be sufficient to permit the conclusion they occurred. Further, asking a veteran for specific details was to be avoided where evidence already of record supported a stressor. The Board review of the record for CUE is accomplished under the standard noted previously and as explained in Crippen v. Brown, 9 Vet. App. 412, 422 (1996) and applied to the version of 38 C.F.R. § 3.304(f) then in effect. Applying this standard, the Board concludes that the RO committed CUE in August 1994 in not granting service connection for PTSD. It is significant that VA amended the M21-1 after it issued section 3.304(f) in final form to clarify the procedural steps in PTSD claims. In essence, the revisions established the procedure to conform to the intent of the newly issued regulation. The Board has reviewed the August 1994 rating decision and the contemporaneous medical evidence from the reconstructed claims file. The record shows undebatably that a VA examiner found PTSD linked to military service. There is nothing in the contemporaneous record to contradict a finding that the VA examination referred to in the August 1994 rating decision was the undated examination report prepared at the Lufkin VA facility. None of the copies of record include a date of examination, but no other contemporaneous examination was referenced in the extensive record of VA treatment or included in the record. The examiner found PTSD, explained the specific criteria for the diagnosis and pointed out how the veteran met these criteria. There was no other psychiatric diagnosis offered on the examination or in the outpatient records, a fact which the rating decision did not mention and one that cannot be ignored. As significant is the stressor letter that undoubtedly existed at the time of the examination in view of the examiner's reference to its content. That the rating board in August 1994 did not have this additional evidence is clear from the narrative discussion of the evidence and the list of evidence considered. Nor is it noted that additional VA records had been requested but not obtained. However, the examiner stated that the veteran had been observed regularly since December 1993 so the rating board had sufficient notice of other pertinent VA records. The constructive receipt rule established in Bell v. Derwinski, 2 Vet. App. 611 (1992) would have application to this case given its facts since the rating decision at issue was after the date the Bell decision, July 21, 1992. See, for example, Damrel, 6 Vet. App. at 246. See also VAOPGCPREC 12-95 holding that final RO decisions rendered on or after July 21, 1992 that failed to consider records which were in VA's possession at the time of the decision, although not actually in the record before the RO, may constitute CUE, if such failure affected the outcome of the claim. (Emphasis added). At the time, a clear diagnosis of PTSD was an essential element to establish service connection. The clear diagnosis was a regulatory term that had been defined as an unequivocal diagnosis. Cohen v. Brown, 10 Vet. App. 128, 139 (1996). The Court did not define clear or unequivocal diagnosis, nor did the preamble information in the publication of the proposed or final amendment adding section 3.304(f) clarify the term. In the legal context, unequivocal is defined as clear, plain, capable of being understood in only one way or as clearly demonstrated. Similarly defined, clear means obvious, beyond reasonable doubt. Black's Law Dictionary, 317, 1698 (Revised Fourth Edition, 1968). The VA examination and supportive clinical records collectively refer only to PTSD linked to military service and thus, the legal standard of a clear diagnosis of PTSD is met. There is no argument that the PTSD diagnosis did not conform to the applicable version of the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association. The Board observes that the record showed undebatably that the veteran was awarded the CAR, and the rating board apparently confirmed his participation in one operation in DaNang. That he linked one stressor to events at DaNang shows directly the outcome determinative significance of the VA clinical records that contained the stressor letter. As discussed in the revised M21-1 guidance for paragraph 7.46, dated December 21, 1992 (Change 4) VA considered certain citations as "conclusive evidence of a claimed inservice stressor" in a PTSD claim. Although the CAR was not expressly added until early in 1995, the applicable rule did not limit recognized decorations to those listed but included any "similar citation" to the Combat Infantryman Badge or Purple Heart. That the CAR is such a citation is beyond any doubt. The RO in questioning the validity of the stressors based on the veteran's military occupation went beyond the development guidelines. A fair reading of section 3.304(f) and applicable development procedures does not point to the veteran's military occupation as a pertinent consideration where the claimed stressors are related to combat and there is the award of a combat citation. The RO went well beyond the development constraints peculiar to PTSD claims based on combat, such as the veteran's, in parsing information about his military duties from the Form 214. The Board does not feel that it is necessary to determine if the changes that resulted from the decision in Doran could apply from the date of the decision, which predated the decision in the veteran's claim, rather than the date of the changes since the record as it stood compels a favorable decision. See Damrel, supra, and VAOPGCPREC 12-95 citing Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). However, even where the applicable procedure was not followed, the Crippen test requires a review of the substantive record to determine if there was no evidence that could have supported a denial on the merits, and that the evidence was at least in equipoise to all the elements of service connection. Here the Board finds that the evidence satisfies this standard for CUE. The PTSD diagnosis linked to military service was clear from the record available in 1994, he was authorized the CAR and he did complete a stressor letter. The rating board noted he had participated in an expedition at DaNang but in effect went beyond this to require further corroboration of stressors. Therefore under the Crippen test, in light of the development procedures for combat related PTSD claims and evidence to be considered, the evidence in favor of service connection was not opposed by any evidence against service connection. The veteran was clearly shown to have PTSD under the criteria VA applied at the time. Further there is no administrative guidance to indicate that VA intended to recognize only those citations listed in the new regulation as "conclusive evidence" of a stressor. In fact the intent of section 3.304(f) was to show that documentation of a stressor was unnecessary in the presence of a combat citation and claimed stressor related to combat. Thus, from the standpoint of direct service connection, there was no evidence against the claim that could have supported a denial on the merits within the development constraints. The veteran disagrees with the way the RO applied applicable law or regulation. The failure to adjudicate the claim under the applicable standards for cases such as the veteran's is more than a breech of the duty to assist, and as such it can be a basis for a CUE claim. There is undebatable evidence that he had chronic PTSD linked to military service. The RO did not review the medical records brought to its attention, as it should have when it denied the claim, and those records contained evidence that clearly affected the outcome. Thus, the Board finds that the evidence available to the RO did compel the conclusion that the veteran had chronic PTSD of service inception on a direct basis. Therefore the Board must conclude that the veteran has articulated a plausible argument based on a failure to apply the law or misapplication of the law to his case in light of the contemporaneous evidence. That is, he has offered compelling undebatable evidence of the existence of PTSD meeting the VA adjudication criteria then in effect. See Fugo, 6 Vet. App. at 43-44. The Crippen elements also having been met, the Board must find that the rating decision of August 19, 1994 was not in accord with acceptable rating judgment. It did contain error of fact or law that when called to the attention of later reviewers compelled the conclusion, to which reasonable minds could not differ, that the result regarding service connection for PTSD would have been manifestly different but for the error. Clearly, it was shown that the evidence compelled service connection as claimed. However, the Board is not inclined to decide what the rating should be for the period prior to July 13, 2000, since that determination has not been addressed by the RO in the first instance. Nor does the Board infer or suggest that any particular rating is warranted for the period that has yet to be determined. The Board, however, directs the attention of the appellant and the RO to the guidance recently provided in Meeks v. West, 216 F.3d 1363, 1367 (Fed. Cir. 2000) regarding the retroactive rating in claims such as the appellant's. See also Bernard, supra. ORDER The August 19, 1994 rating decision, wherein the RO denied entitlement to service connection for PTSD having constituted CUE, the appeal is allowed to the extent indicated, subject to the regulations governing the payment of monetary awards. RONALD R. BOSCH Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.