Citation Nr: 0300058 Decision Date: 01/03/03 Archive Date: 01/15/03 DOCKET NO. 00-15 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Whether a January 19, 1956, rating decision denying service connection for a nervous condition should be revised or reversed based on clear and unmistakable error (CUE). 3. Entitlement to service connection for a nervous condition/anxiety disorder. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The veteran served on active duty from August 1952 to March 1954. The veteran served on active duty from . This matter comes before the Board of Veterans' Appeals (Board) February 1999 and May 2000 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, the first of which denied an application to reopen a claim for service connection for PTSD and denied a request to revise or reverse a January 19, 1956, rating decision denying service connection for a nervous condition; and the second of which denied service connection for a nervous condition/anxiety disorder. The issue of entitlement to service connection for a nervous condition/anxiety disorder will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. Service connection for PTSD was denied by rating decision in September 1994; the veteran did not appeal that decision. 2. Evidence received since the September 1994 rating decision which denied service connection for PTSD bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and, in connection with the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran experienced an assault in service in 1953 which resulted in currently diagnosed PTSD. 4. The January 1956 rating decision was not undebatably erroneous in denying service connection for a nervous condition; the RO did not make any error of fact or law in the January 1956 rating decision that, had it not been made, would have manifestly changed the outcome of the decision at the time it was made. CONCLUSIONS OF LAW 1. The September 1994 rating decision which denied entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. Evidence received since the September 1994 rating decision denying service connection for PTSD is new and material, and the claim for that benefit has been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2001). 3. PTSD resulted from a traumatic event experienced in service, and service connection is warranted for PTSD in this case. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991 & Supp. 2002); 38 C.F.R. § 3.304(f) (2002). 4. The January 19, 1956, rating decision, which denied entitlement to service connection for a nervous condition, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.104, 3.105(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 While this case was being developed at the RO, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted in November 2000. This law emphasized VA's obligation to notify claimants what information or evidence is needed in order for a claim to be substantiated, and it affirmed VA's duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 1991 & Supp. 2002). The law applies to all claims filed on or after the date of its enactment or, as in this case, filed before the date of enactment and not yet subject to a final decision as of that date because of an appeal filed which abated the finality of the decision appealed. 38 U.S.C.A. § 5107, Note (West Supp. 2002). Despite its potentially broad applicability to all claims filed in its wake, the VCAA has little, if any, bearing on the request for revision of the January 1956 rating decision on the basis of CUE, the denial of which is one subject of this appeal. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001); see also Livesay, 14 Vet. App. 324, 326 (2001) (Ivers, J., concurring) (noting that, during oral argument in Holiday v. Principi, 14 Vet. App. 280 (2001), counsel for VA made ill-advised concessions with respect to applicability of VCAA, especially as to CUE). A request for revision based on CUE, by its nature, involves only evidence that was before the RO at the time it rendered the decision in which the claimant alleges CUE. Thus, there is no evidentiary development to be done. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); VAOPGCPREC 12-2001 at para. 7 (July 6, 2001). The claimant sets forth legal arguments about errors in a prior final decision based on the law and the evidence extant at the time of that decision. Accordingly, the Board concludes that the VCAA provides no requirements that must be fulfilled and which have not been fulfilled before the Board may review the request for revision based on CUE in this case, and there is no prejudice to the veteran in deciding her claim. VAOPGCPREC 11-97 at 3-4 (Mar. 25, 1997); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). With regard to the application to reopen a claim for service connection for PTSD, the Board has granted the veteran's claim for service connection for PTSD in the decision below, and therefore the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the requirements of the VCAA have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Background The veteran served on active duty from August 1952 to March 1954. An August 1952 enlistment examination report showed no complaints relevant to a psychiatric disorder. Clinical evaluation of the psychiatric system was normal. Sick Call Treatment Records show that the veteran was seen in April and August 1953 and in January 1954 for "anxiety syndrome" and "anxiety reaction", and she was treated with Seconal (secobarbital), an obsolescent sedative and short-acting hypnotic; largely replaced today by benzodiazepines. See Stedman's Medical Dictionary 1588 (26th ed. 1995). The March 1954 separation examination report showed no complaints relevant to a psychiatric disorder. Clinical evaluation of the psychiatric system was normal. In August 1955, the RO received a claim from the veteran for service connection for a nervous condition which she indicated had begun in July 1953. She also indicated that she had been treated for a nervous condition in June 1954 by a doctor whose name she could not recall ("Unknown") in Redbank, New Jersey; in April 1955 by Dr. W.; and from May to August 1955 by Dr. F. Her application also showed that she had had a child in April 1955 at Sunbury Community Hospital. Also in August 1955, the RO received VA Form 10-P-10, Application for Hospital Treatment or Domiciliary Care. On the back of this form was a Medical Certificate, completed by Dr. F., who reported that the veteran's present illness was approximately two years in duration and had been characterized by recurrent depressions. When in one of these depressive moods, the veteran wanted to be by herself, had uncontrollable crying, and hated everyone about her. She engaged in considerable introspective thinking and had feelings of helplessness and hopelessness. Dr. F. listed the veteran's symptoms as "[f]loating sensations, weak spells, tires easily, intolerance of cold, vertigo, difficulty in making up mind, doubting mania, anorexia, constipation, body unable to stand up under demands, social maladjustment, intolerance of people, irritability, feels shut off from other people, suicidal thoughts, and the belief that people are laughing at her and talking about her in a derogatory fashion." The diagnosis was schizoid state. In late August 1955, the RO received a note from the veteran's husband, stating that he had been unable to contact the doctor from Red Bank, New Jersey, who had treated the veteran because he was unable to recall his name but that he was enclosing two statements from doctors who had administered to the veteran. One letter was from Dr. W., in which he stated that the veteran had had "menstrual and emotional trouble starting at 14." He stated that she was treated with medication and her condition was good "until after she entered the Army at which time the menstrual periods and emotional stability became worse." She was again treated with medication until she became pregnant. According to Dr. W., the veteran's emotional state was very good during the pregnancy but following delivery "the behavior became very much worse [and] at times impossible." He further stated that physical examination of the veteran was normal and her post-partum recovery was very normal. He concluded, "I believe this is more of a behavioral problem than a psychosis." The other letter submitted by the veteran's husband in August 1955 was from Dr. F., who stated that he first saw the veteran in psychiatric consultation on May 5, 1955, at which time she demonstrated recurrent depression, emotional instability, lack of motivation, and morbid preoccupation with her own problems. She was treated with medication, and arrangements were made to begin a series of psychotherapeutic interviews. Three days later, the veteran became seriously disturbed and was admitted to Sunbury Community Hospital on May 8, 1955. She had three electric shock treatments while in the hospital and was discharged on May 13, 1955. The veteran had a short-lived remission and electric shock was administered again on May 25, 1955. She did not consult Dr. F. again until July 6, 1955, at which time she complained of recurrent depression, temper tantrums, intolerance of stress situations, excessive nervousness, and episodes of uncontrollable crying. She was treated with Thorazine (chlorpromazine), an antipsychotic agent. See Stedman's at 326. Once again arrangements were made for a series of psychotherapeutic interviews, but she failed to report for the initial appointment on July 28th. Dr. F. stated that he had not seen the veteran again but that information obtained from her family indicated that she continued to have difficulty in effecting a satisfactory adjustment. In September 1955, the RO received an extract from the Medical Records Librarian at Sunbury Community Hospital pertaining to the veteran's period of hospitalization from May 8 to May 13, 1955. Upon admission, it was noted that the veteran was "[d]epressed and act[s] in a manner unrelated to real life." She was agitated, depressed, and suicidal. There was a history of previous attacks with one suicidal attempt. The veteran was two weeks post-partum. In addition to the electric shock treatments, the extract showed that the veteran was treated with Thorazine and Insulin. The diagnosis was schizoid state. On a September 1955 VA examination report, the veteran provided a history of having developed a nervous condition in about July 1953 while stationed in Lakehurst, New Jersey, and she stated she was treated in service for this condition periodically from that time until she was discharged from service. She stated that she immediately began receiving treatment upon discharge by local physicians, that she continued treatment up to the present time, and that her condition had improved considerably under treatment. On the September 1955 VA psychiatric examination, the examiner noted that the veteran reported that she had a psychotic episode and attempted suicide in service and had received treatment but the examiner noted, "I cannot find anything in the records to substantiate this." The examiner recorded the history of treatment and hospitalization after discharge and noted that the veteran had no nervous complaints at the present time. The examiner also noted that, after the veteran married and during early pregnancy, she became very depressed and made some suicidal attempts. The diagnosis was schizoid state. The examiner stated, "She is an inadequate schizoid personality and introverted but seems to have entirely recovered from her psychosis and is making a fair social and industrial adjustment." The examiner also noted that the veteran claimed her first spell of depression during service and attempted suicide was due to trouble with her present husband before they were married. The diagnosis was psychosis, undifferentiated, in complete remission. In October 1955, the RO wrote to Dr. W. and asked him to advise VA of all the dates of treatment of the veteran for the emotional episodes and of his findings, treatment and diagnoses before and after the veteran's period of service. In November 1955, the RO received VA Form 10-2593, Record of Hospitalization, showing that the veteran had been admitted to a VA hospital in Perry Point, Maryland, on September 3, 1955, with a diagnosis on admission of schizophrenic reaction, chronic, undifferentiated. The record showed that after the second day of hospitalization the veteran signed out against medical advice before a clinical diagnosis could be established. Having received no reply from Dr. W. to its October 1955 letter, the RO wrote to him again in December 1955, requesting him to advise VA of all the dates of treatment of the veteran for the emotional episodes and of his findings, treatment and diagnoses before and after the veteran's period of service. No reply from Dr. W. to the RO's two requests for information is in the claims file. In a January 1956 rating decision, the RO adjudicated the veteran's claim for service connection for a nervous condition. On the rating decision, the RO characterized the issue as "Entitlement to service connection for psychosis." The RO summarized the evidence and concluded, "The records indicate that the veteran had emotional troubles since childhood, required only three sick bay treatments for anxiety syndrome during service, and was entirely asymptomatic at discharge." The RO further noted, "A psychosis was first diagnosed more than one year subsequent to service. There is no evidence to indicate a 10 [percent] degree of psychotic disability within one year from discharge." In a January 1956 notification letter, the RO informed the veteran of its decision: "Your nervous condition was not incurred in or aggravated by your service." She was informed of her rights to appeal the decision at any time within one year from the date of the notification letter. The veteran did not appeal the rating decision. A VA Form 10-2731, Request for Administrative and Adjudicative Action, from a VA hospital in Wilkes-Barre, Pennsylvania, which was received by the RO in October 1962, showed that the hospital was requesting information about whether the veteran had been granted service connection for the purpose of adjudicating eligibility for outpatient medical treatment. The nature of the disease or injury for which treatment was being requested was "mental condition" and the approximate date that the veteran first noted this condition was "1953". In reply to the Wilkes-Barre facility's request for information, the RO forwarded a copy of the January 1956 rating decision. In February 1966, the RO received an application from the veteran for non-service-connected pension on which she indicated that she had been receiving treatment since January 1966 at a VA hospital in Salisbury, North Carolina. On VA Form 10-7131, Exchange of Beneficiary Information, it was noted that the veteran had been committed by a judge in Florida, in December 1965 and had been transferred to the VA hospital from a Florida State Hospital. A March 1966 VA Form 119, Report of Contact, reflected that the RO had called the veteran's husband and ascertained that the veteran had been adjudicated incompetent by court order and was presently in the VA hospital in Salisbury. The report from the Salisbury VA facility showed that the veteran had been admitted in January 1966. A Clinical Record pertaining to the veteran's past history reflected that she stated that her childhood had been "plain miserable", that her parents were divorced, and for most of childhood she had had a stepfather with whom she did not get along well. The examiner noted that the veteran reported that she entered the Navy at the age of 19 and, while in the service, "she had a traumatic experience by being seduced and having an illegitimate child, which was given away for adoption." The examiner further noted, "From all this childhood and family history, it becomes rather evident that the [veteran's] childhood experiences . . . acted probably as a traumatic experience with aftereffects." In another portion of the Clinical Record, the same examiner noted, "Although the [veteran] at the present time does not seem to be overtly psychotic there is a lot of hostility, loose ability of association in thinking, a tendency to withdraw from interpersonal relationships and a propensity to certain drives, all of which are proof of a basically schizoid personality with probably outbreaks of minute episodes of open psychosis." The diagnosis was schizophrenic reaction, chronic and undifferentiated type. In a September 1966 rating decision, the RO granted non-service-connected pension. A Hospital Summary from the Salisbury facility showed that the veteran remained hospitalized there until August 1967. It was noted that her "childhood surroundings and experiences were very unwholesome and injurious, hindering the development of a normal personality with normal emotional feelings, attachments, and moral principles, never reaching maturity and stability." It was further noted that "[y]ear-long psychotherapy, [electroconvulsive therapy] and repeated hospitalization [were] rather resultless." The diagnosis was schizophrenic reaction, chronic undifferentiated type. VA Hospital Summaries show that the veteran was hospitalized at a VA facility in Coatesville, Pennsylvania, from October 1967 to March 1968 for schizophrenic reaction, chronic undifferentiated type, and from January 1971 to March 1971 for hysterical personality disorder with depressive features and for alcohol addiction. The latter report noted that psychological testing did not reveal a schizophrenic process although this had been mentioned in past hospitalization. It was noted that the testing pointed more toward hysterical and depressive elements in a narcissistic character with passive aggressiveness. In February 1983, the veteran was scheduled by VA for psychiatric examination in connection with her pension benefits. The examiner noted that the veteran made some reference to being raped in the service and identified that rape as the onset of her psychological difficulties over the years. The examiner also noted that the veteran described that, as a teenager prior to entering the service, she had received psychiatric treatment both in the form of outpatient psychotherapy and "shock treatments" in a state hospital near Sunbury, Pennsylvania. The veteran described her childhood as somewhat tumultuous with frequent temper tantrums, runaways, and other impulsive behavior She reported having stopped her use of alcohol six and a half years earlier. On Mental Status examination, there was no evidence of a thought disorder. The examiner noted that the veteran presented no symptoms that could be construed to represent psychosis. She presented with a lifelong history of what appeared to be a characterological dysfunction manifested by impulsivity, explosive anger and irritability, and difficulties in maintaining interpersonal relationships. The diagnoses were mixed personality disorder with affective and borderline personality traits and alcohol abuse and other substance abuse (i.e., major and minor tranquilizers) presently in remission. In August 1993, the veteran submitted a claim for service connection for PTSD due to a sexual assault she experienced in the service at Lakehurst Naval Station in 1953. She submitted authorization for the RO to obtain treatment records from a private health care provider, V. M. D. In September 1993, the RO requested treatment records from Ms. D. and wrote to the veteran and notified her that her service medical records did not provide any information concerning a sexual assault in service and requested that she submit a statement concerning the facts and circumstances surrounding the assault, including information as to whether or not the incident was reported, and if so, to whom. In October 1993, the veteran replied that, upon completing basic training, she was sent to Lakehurst, New Jersey, and, once there, she met a man, whose first name was [redacted], and they made plans to go out on a date. After having been out for awhile, the man drove himself and the veteran to a wooded area. When he stopped, the veteran jumped out of the car to get away. The man chased the veteran around the car. The veteran hoped to get into the car and lock the doors before he caught her. She did manage to get into the car but the man forced himself into the car and the sexual assault took place. The man told her not to tell anyone about it or he would kill her. She stated that she did not tell anyone about it at that time. When she returned to the barracks she took pills in all the cabinets in the barracks and her head felt like it was removed from her body. She stated she married later and started to drink. Not long afterwards, the marriage ended in divorce. In October 1993, the RO received a report, dated in September 1993, from D. N.-B., Ph.D., a clinical psychologist, of the Colorado Springs Vet Center, who stated that she was providing individual psychotherapy for the veteran for PTSD, delayed, and depression. She stated that the veteran was referred to her because of chronic symptoms related to being sexually assaulted (raped) while on active duty. In October 1993, the RO requested additional service medical records, if any, to include facts and circumstances surrounding a sexual assault in 1953 at Lakehurst Naval Station. The response from the National Personnel Records Center (NPRC) in St. Louis, Missouri, was that no records were found and that all medical records had been forwarded to the Wilkes-Barre, Pennsylvania, RO in August 1955. In October 1993, the RO received an undated report from V. M. D., M.A., C.A.C., who stated that the veteran had sought treatment with her beginning in 1983 because she was having difficulty maintaining a stable relationship or tolerating being alone. Ms. D. stated that the veteran had attributed most of her difficulties in psychological and social functioning to having been raped while in the Navy when she was in her twenties. Ms. D. stated that a year after the rape, the veteran became incestuously involved with her step-father which continued for several years. As a result of these events, the veteran became disillusioned, angry, and distrustful of men. The diagnosis was PTSD. On a January 1994 VA examination, the examiner recorded the veteran's history of having been raped in service which was essentially the same history she provided in her October 1993 statement, except that she also reported that she believed that after she had taken the pills in the barracks she had been hospitalized. She stated that she could not recall whether this was a psychiatric or medical hospitalization, how long she was hospitalized, or what exactly happened. She thought she returned to duty but was not sure and was discharged sometime thereafter. She reported that she had been taken to a psychiatrist as a child for "temper tantrums" but could not recall the extent of treatment or whether medications were used. Following mental status examination, the examiner stated that, unfortunately, some of the records that would be of most help were not available at the time of the examination. The examiner stated that there was no doubt in his mind that the sexual assault and a subsequent PTSD secondary to that event, assuming it could be verified, was part of the veteran's overall clinical picture. However, the examiner stated that it was only part of the picture, and he noted that the veteran presented in a distinctly unusual manner and showed symptoms which were not usually typical of PTSD. Her labile mood, rather disjointed abnormal speech, and excessive anxiety as well as her difficult pattern of human relations suggested that there was an underlying significant psychiatric disorder which may have been manifest as early as childhood with temper tantrums. The examiner stated that he could not be precise in his diagnosis of this disorder at this time but that it had been labeled at various times as a schizoid personality, schizophrenia, or other mixed personality disorder. The examiner noted that, although the veteran's most recent therapists deferred the diagnosis of a personality disorder in their assessments, it was clear to him that there was more going on than just PTSD. He noted that the veteran showed obvious hysterical labile paranoid and schizoid features. The diagnoses were PTSD, secondary to sexual assault; recurrent major depressive episodes with panic attacks; and borderline personality disorder with hysterical labile and schizoid features. In a September 1994 rating decision, the RO denied service connection for PTSD. Among other things, the RO stated in the rating decision that "it is not shown at this time that the veteran's reported stressor has been corroborated by credible supporting evidence without contradicting the service records." The veteran was provided a copy of the rating decision at that time and notified of her right to appeal. The veteran did not appeal the decision. In June 1997, the RO received a letter from the veteran's representative claiming CUE in the January 1956 rating decision and entitlement to service connection for PTSD. The veteran's representative contended that the January 1956 rating decision "was erroneous both factually and legally." A summary was provided of the evidence that was before the RO at that time, and the representative stated, "These facts were not properly considered in the [r]ating [d]ecision of 1/19/56." The representative also stated, "The [r]ating [d]ecision is [CUE] as a matter of law because of its failure to follow controlling regulations regarding conditions noted in service. There is no question that this veteran's condition was noted in service and diagnosis [sic] little more than a year after discharge." With regard to the claim for service connection for PTSD, the representative noted that the January 1994 VA examination provided a diagnosis of PTSD and described the condition as being secondary to a sexual assault which took place during service. In August 1998, the RO received evidence it had requested from the Social Security Administration (SSA) including the report of R. R., M.D., dated in May 1991. Dr. R. stated that the veteran had been under his psychiatric care since December 1988. The diagnoses were major depression, recurrent, and history of alcohol dependence; and personality disorder, NOS, with borderline features. A Disability Determination and Transmittal form dated in May 1991 showed that the SSA had determined that the veteran was not disabled, and benefits were denied. In October 1998, the RO received a response from the NPRC to a request for clinical records, i.e., records of in-patient hospitalization, for the veteran from Lakehurst Naval Station in New Jersey. The NPRC stated that no records were on file. In November 1998, the RO notified the veteran, with a copy to her representative, that attempts were made to obtain clinical records (Lakehurst Naval Station) from NPRC and the attempts were unsuccessful. The RO stated that all efforts to obtain these records had been exhausted. In a February 1999 rating decision, the RO denied the claim of CUE in the January 1956 rating decision on the basis that a valid claim of CUE had not been presented and denied the claim for service connection for PTSD on the basis that new and material evidence had not been submitted to reopen that claim. In June 1999, the veteran's representative filed a notice of disagreement with the February 1999 rating decision. With regard to the claim of CUE in the January 1956 rating decision, he stated that it was clear from the January 1956 rating decision that the evidence of record was simply ignored. He contended that the dispute was not about how the evidence was weighed but whether it was given any weight whatsoever. He contended that the RO at that time ignored a sick call treatment record of August 10, 1953, which noted an anxiety syndrome, and no attempt was made to determine whether there was, in addition to a psychotic condition, a neurotic condition. With regard to the claim for service connection for PTSD he stated that that claim should not be considered on the basis of whether new and material evidence had been submitted to reopen it but should be considered a new claim because an intervening change in law issued since the September 1994 rating decision denying service connection for PTSD had created a new basis of entitlement for service connection for PTSD. Specifically, he stated that the change in law consisted of certain provisions of VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, (M21-1). He referred to decisions of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994), and in Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), in support of this position. In June 2000, the RO issued a statement of the case, and in July 2000, the RO received a VA Form 9 substantive appeal from the veteran's representative. In the substantive appeal, the veteran's representative argued, in relation to the CUE claim, that the RO in the 1956 rating decision erred in stating that the veteran "required only three sick bay treatments for anxiety syndrome during service" because the service medical records showed that she had been treated five times, including on July 18, 1953, when the barbiturate Seconal was administered and on February 23, 1954, when she was referred to a civilian doctor for anxiety syndrome. The representative stated that the RO "did not have all the facts before it prior to making its decision." Further, the representative argued that it was error for the RO to have relied upon the statement of Dr. W. that the veteran had emotional troubles since the age of 14 in apparently concluding that those troubles and the anxiety syndrome in service were the same disorder. He argued that the RO had rendered its own unsubstantiated medical conclusion in deciding that the veteran had emotional troubles since childhood and cited the decision of the United States Court of Appeals for Veterans Claims (Court) in Romeo v. Brown, 5 Vet. App. 388, 393-94 (1993), in support of his contention that the RO in January 1956 had "inserted its own unqualified medical opinion to support its preconceived notion that [the veteran's] claim should be denied." He further argued that the RO had erred in applying the presumption of soundness in January 1956 and that the RO had erred in not getting a medical opinion to determine whether there was a connection between the in-service anxiety reaction and the post-service diagnosis of psychosis. He stated that, had the RO not made these mistakes, service connection would have been granted. Concerning the PTSD claim, the representative argued that the failure of the RO to obtain records from SSA prior to adjudicating the claim for service connection for PTSD in September 1994 was "grave procedural error" which rendered the 1994 rating decision fatally flawed and non-final under the holding of the Federal Circuit in Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). The representative also reiterated his argument that the provisions added to the M21-1 regarding claims for PTSD based on assault constituted an intervening change in law which gave rise to a new claim of entitlement to the benefit by the veteran and that therefore her claim for PTSD was a "new" claim, not subject to the requirement that new and material evidence be submitted to reopen claims previously denied by a final decision. VA outpatient treatment reports dated from May 1996 to January 2000 were obtained and associated with the claims file. Diagnoses throughout 1996 included PTSD, major depression, and alcoholism in remission for 19 years. In December 1998, a progress note reflected that the veteran did not relate a history consistent with psychosis or mania. The assessment was history of borderline personality disorder; possible PTSD secondary to rape; and alcohol dependence in remission. A note by an examining psychiatrist, dated in December 1998, reflected that the veteran reported that she had been raped while in the Navy and also reported domestic violence in her first marriage. Diagnoses in 1999 included borderline personality disorder, major depression, generalized anxiety disorder, and alcohol dependence in long remission. In a treatment note dated in September 1999, the veteran discussed how her brain had always felt cut off from her body and that she had ignored her physical body for many years. The examiner stated, "We discussed how this may have been a survival mechanism as a youngster when [the veteran] experience sexual trauma per stepfather." On a December 1999 report, the examiner noted that the veteran discussed growing up in a very dysfunctional family with sexual abuse. In September 2000, the veteran underwent a VA examination in which she reported essentially the same details about the rape in service that she had provided on the October 1993 statement that she had submitted to the RO. She stated that the man had threatened her life and told her not to report the rape. She reported that soon after this, she became extremely anxious and reported to sick bay several times. The veteran reported that it affected her performance on the job and that she also attempted suicide by overdose on medication. Concerning her family history, the veteran reported that she had a rough upbringing and there was a family history of alcohol problems, high blood pressure and anxiety that ran in the family. Subsequent to taking the history and conducting a mental status examination, the examiner rendered the diagnoses of PTSD, chronic, moderate to severe; major depression, in partial remission, moderate; history of substance and alcohol addition in full sustained remission for 24 years, by patient report; and personality disorder, not otherwise specified, history of borderline traits. The examiner noted that the veteran had a longstanding history, dating back to early military service, of treatment for anxiety and depression. The examiner also noted that the veteran had a documented history of multiple mental health interventions for serious depression and anxiety and had alcohol and substance abuse problems in the past. The examiner rendered the opinion that the veteran's traumatic experience of sexual assault during service was as likely as not a stressor that began a long history of ongoing mental health difficulties. The examiner further stated that, while the veteran may have developed additional difficulties due to other life events and stressors through the years, it was reasonable to postulate that the initial stressor took place during her military service secondary to rape. The RO obtained and placed in the claims file VA outpatient treatment reports, dated from May 2000 to May 2002, which showed assessments of borderline personality disorder and major depression. Also obtained were VAMC discharge summaries for periods of hospitalization from December 22 to December 30, 1998, and from January 7 to January 13, 1999. The diagnoses included depressive disorder, anxiety disorder, PTSD, and borderline personality disorder. Stressful events that led to the diagnoses of PTSD on the January 1999 report were not mentioned in the report. In June 2002, the RO continued the denial of the veteran's claims for revision or reversal of the January 1956 rating decision based on CUE and for service connection for PTSD. A supplemental statement of the case was issued in July 2002. New And Material Evidence To Reopen Claim For Service Connection For PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). 38 C.F.R. § 3.304(f). In March 2002, section 3.304(f), which sets for the requirements for service connection for PTSD, was amended to add a specific section dealing with claims for service connection for PTSD secondary to allegations of an in-service personal assault, and the regulation now provides, in pertinent part, that, if PTSD is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Moreover, the regulation provides that evidence of behavior changes following the claimed assault is one type of relevant evidence that may constitute credible evidence of the stressor and such evidence includes, but is not limited to, a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The regulation specifically provides that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). In this case, the veteran's original claim for service connection for PTSD was denied by the RO in September 1994. The RO found that the veteran's alleged non-combat stressor had not been corroborated by credible supporting evidence. The veteran was notified of the decision the same month. She failed to appeal the denial of service connection, and the September 1994 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). Under existing law there are three grounds on which a veteran may seek further consideration of a finally denied claim. The first ground, specified by statute, is to show that there was CUE in the final determination. 38 U.S.C.A. § 5109A, 7111. The pertinent regulation specifically states that previous determinations which are final and binding are accepted as correct in the absence of CUE and that where evidence establishes such error, the prior decision is reversed or amended. 38 C.F.R. § 3.105(a). A second ground, again statutory, under which a finally denied claim may be reconsidered is where new and material evidence sufficient to reopen the claim is presented. If new and material evidence is presented or secured with respect to a claim which is disallowed, VA reopens the claim and reviews the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Thirdly, the courts have held that, under appropriate circumstances, an intervening change in applicable law may entitle a veteran to receive consideration of a claim de novo, or as a "new" claim, even though the claim is based on essentially the same facts as those in a previously adjudicated claim. Routen v. West, 142 F.3d 1434, 1441-42 (Fed.Cir. 1998); Spencer v. Brown, 17 F.3d 368, 372 (Fed.Cir. 1994), aff'g 4 Vet. App. 283, 288-89 (1993). In addition to these three grounds for reconsideration of a finally denied claim, the Federal Circuit has held that, "[w]here there is a breach of the duty to assist in which the VA failed to obtain pertinent [service medical records] specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency, the claim does not become final for purposes of appeal." Hayre v. West, 188 F.3d 1327, 1334 (Fed.Cir. 1999). In this case, the veteran has not alleged that the September 1994 rating decision should be revised or reversed based on CUE. Moreover, she has not asserted that the claim for service connection for PTSD should be reopened based on new and material evidence but has specifically argued that new and material evidence is not needed in this case. Instead, she argues that, because an intervening change in applicable law has occurred since the claim was denied by the September 1994 rating decision, the claim should be considered as a "new" claim, even though it is based on essentially the same facts as those adjudicated previously in 1994. In the alternative, the claimant has alleged that a grave procedural error occurred in 1994 which renders the September 1994 decision nonfinal. With regard to the first argument, the Board notes that, although section 7104(b) precludes consideration of a finally denied claim unless new and material evidence is presented or secured which establishes a new factual basis for entitlement to the claimed benefit, that section "does not preclude de novo adjudication of a claim, on essentially the same facts as a previously and finally denied claim, where an intervening and substantive change in law or regulation has created a new basis of entitlement to a benefit." Spencer, 4 Vet. App. at 289, aff'd, 17 F.3d 368, 372 (Fed. Cir. 1994). Even though the latter review involves consideration of the same facts as were considered previously, the adjudication or review is considered to be conducted "de novo" or "anew" because the new law has created a "new cause of action". See Routen v. West, 142 F.3d 1434, 1441 (Fed. Cir. 1998) (noting that, the logic of the intervening change rule, if it is to escape the finality bar of section 7104(b), must be that the intervening change in law creates a new cause of action; otherwise, every time Congress amends a benefit statute or the agency changes a regulation to make it easier to prove entitlement, any claimant who previously was denied a benefit could reopen the claim and such a rule would, in effect, repeal the requirement that new and material evidence must be presented to reopen a final decision on a claim). Here, however, the changes provided by the M21-1 provisions, like the amendment in 2002 to section 3.304(f), simply articulated more clearly the evidentiary burden required of claimants alleging that PTSD is due to personal assault in service by noting alternative sources of evidence that might provide credible supporting evidence of the noncombat stressor in such claims. Those provisions did not create a "new cause of action" or a "new basis of entitlement" to the benefit sought. Anglin v. West, 11 Vet. App. 361, 368 (1998) (noting that M21-1 changes concerning alternative sources of evidence could not provide a basis for reopening a PTSD claim because the Federal Circuit in Routen held that a regulatory change in an evidentiary burden could not constitute new and material evidence); see also Patton v. West, 12 Vet. App. 272, 278 (1999). Thus, the Board notes that these changes did not create any new substantive rights and concludes that it may not treat the claim for service connection for PTSD as a new claim, rather than one to reopen, based upon the M21-1 provisions. With regard to the veteran's argument that the September 1994 rating decision should be considered "nonfinal" due to "grave procedural error", as that phrase was used in Hayre v. West, because the RO in 1994 did not obtain relevant medical evidence from SSA, the Board notes that the only indication VA had at the time of its September 1994 rating decision that the veteran had records at SSA was an undated report from Ms. D. which included on the first page a reference to Social Security/Disability Determination Services. There is no evidence demonstrating that the veteran informed VA of the existence of the medical evidence and/or that she requested VA to obtain such evidence. In Hayre v. West, 188 F. 3d 1327, 1332-1333 (Fed. Cir. 1999), the Federal Circuit held that an RO's failure to obtain specifically requested service medical records of an appellant and its failure to notify him of its failure to obtain them may have constituted "a grave procedural error" and, if so, then the RO decision at issue was not final. Id. at 1335. The Court has cautioned, however, that Hayre is a judicially created departure from statutorily mandated rules governing the finality of VA decisions and that it should not be read broadly as a basis for disregarding finality in situations not involving grave procedural error. Tetro v. Gober, 14 Vet. App. 100, 110 (2000). All breaches of the duty to assist are not such grave procedural errors that they render a claim nonfinal; rather, the holding in Hayre singled out for special attention the failure of VA to obtain service medical records because they are generally in the control of VA and are otherwise irreplaceable. Dixon v. Gober, 14 Vet. App. 168, 172 (2000), citing Hurd v. West, 13 Vet. App. 449, 453 (2000). A conservative application of the holding in Hayre should be used, and that use should be limited in scope and reserved for instances of grave procedural error which may deprive a veteran of a fair opportunity to obtain entitlement provided for by law and regulation. Id. at 172, citing Simmons v. West, 13 Vet. App. 501, 508 (2000). The Board notes that, although in Tetro the Court found that a failure to obtain SSA records prior to a 1990 Board decision was not a grave procedural error, this decision was based on the fact that there was a dearth of clear authority to guide the Board in 1990 concerning procurement of SSA records. The Tetro Court expressed the opinion that, at the time of its decision in 2000, a failure to obtain SSA records would constitute a breach in the duty to assist. Tetro, 14 Vet. App. at 110. In this case, however, even though the RO may have breached its duty to assist the veteran in her PTSD claim by failing to obtain SSA records, such failure does not rise to the level of a "grave procedural error." In the current case, the veteran was specifically informed that her claim was denied solely due to the fact that her alleged in-service stressor had not been corroborated. The veteran was not denied a chance for judicial review on the issue of whether the evidence was sufficiently probative of the occurrence of an in-service stressor upon which the outcome of her case hinged. Accordingly, the Board concludes that no "grave procedural error" occurred in this case that would warrant a finding of nonfinality of the September 1994 rating decision. Thus, the Board will review the application to reopen the claim for service connection for PTSD on the basis of whether new and material evidence has been submitted because "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). Although this claim does not involve a prior final denial by the Board but rather by the RO, the same statutory reopening requirements apply to prior final RO decisions. Suttmann v. Brown, 5 Vet. App. 127, 135 (1993). Therefore, the Board is required by statute to review whether new and material evidence has been submitted to reopen the claim. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The claimant does not have to demonstrate that the new evidence would probably change the outcome of the prior denial. Rather, it is important that there be a complete record upon which the claim can be evaluated, and some new evidence may contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability. Hodge, 155 F.3d at 1363. The provisions of 38 C.F.R. § 3.156(a), defining new and material evidence, were amended effective August 29, 2001. These amendments are effective only for claims received on or after August 29, 2001, and therefore they are not relevant in this case. See 66 Fed. Reg. 45620-45632 (August 29, 2001). A review of the claims file in this case reveals that the pertinent evidence submitted subsequent to the September 1994 rating decision consisted of medical records from SSA, VA hospitalization and outpatient treatment records, and a report of a VA examination. The Social Security records and VA treatment records included diagnoses of major depression, generalized anxiety disorder, borderline personality disorder and some diagnoses of PTSD. Some of the reports, including those that showed a diagnosis of PTSD, recorded a history provided by the veteran of having been raped during active duty. The RO denied the claim in September 1994 on the basis that the occurrence of the stressful event described by the veteran, i.e., the rape in service, had not been verified or corroborated by credible supporting evidence. Nevertheless, the Board notes that the September 2000 VA examination provided further corroboration of the diagnosis of PTSD, and therefore it is not merely cumulative of other evidence of record. See Paller v. Principi, 3 Vet. App. 535, 538 (1992). Moreover, the VA examiner expressed the opinion that the veteran's traumatic experience of sexual assault during service was as likely as not a stressor that began a long history of ongoing mental health difficulties and that, while the veteran may have developed additional difficulties due to other life events and stressors through the years, it was reasonable to postulate that the initial stressor took place during her military service secondary to rape. Thus, this evidence adds to the record upon which the claim can be evaluated, and it contributes to a more complete picture of the circumstances surrounding the origin of the veteran's disability. Hodge, 155 F.3d at 1363. Accordingly, the Board finds the evidence submitted subsequent to the September 1994 rating decision bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and, in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Therefore, the Board will reopen the claim for service connection for PTSD. The remaining question is whether the evidence of record is at least in approximate balance concerning all the material issues of fact involved in the claim, so that service connection for PTSD may be granted, or whether the Board must remand the matter for further development of the evidence. 38 U.S.C.A. § 5107(b). In this case, the veteran has been diagnosed as having PTSD and there is an approximate balance of positive and negative evidence that the stressful event which precipitated the disorder was the alleged sexual assault in service. Concerning this, the Board notes that some examiners who have rendered diagnoses of PTSD have not specifically stated what the precipitating stressful event was that led to the disorder and many examiners throughout the years have noted a particularly stressful and traumatic childhood prior to service which may have included sexual abuse. However, some examiners, including the September 2000 VA examiner, reviewed the past medical records depicting the history of an "unwholesome and injurious" childhood, as it was described on the 1966-67 hospital report from the Salisbury VA facility, and others were aware of the difficult childhood by the veteran's history, and these examiners still attributed the PTSD to the alleged rape in service. Therefore, the Board will resolve the benefit of the doubt as to the link between the current PTSD and the alleged stressful event in service, as opposed to a stressful event prior to service or at some other time, in favor of the veteran. 38 U.S.C.A. § 5107(b). The remaining issue is whether there is sufficient credible supporting evidence of the occurrence of the alleged sexual assault in service to place the evidence as to that material issue of fact at least in approximate balance. Obviously, the "negative" evidence of record is the absence of direct evidence of the occurrence of the assault in service. The absence of such evidence demonstrates either that no assault took place or, as alleged by the veteran, that she never reported the incident to anyone in service. The 2002 amendment to section 3.304(f) appears to contemplate that this situation will often confront adjudicators in these types of PTSD cases, and the amendment specifically provides for alternative forms of evidence that may constitute credible supporting evidence of the occurrence of the stressor. Among these are included evidence of substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause. 38 C.F.R. § 3.304(f). In this case, the evidence shows that the veteran was treated for anxiety in service and that post-service reports, beginning as early as 1955, reflected treatment for episodes of depression and other debilitating psychiatric symptoms requiring hospitalization. Later records show alcohol abuse. These are the kinds of symptoms that the regulation specifically contemplates as constituting credible supporting evidence of an alleged assault in service. Although it is true that these symptoms may have resulted from causes other an assault in service, some examiners, as noted above, have attributed them to the alleged assault in service rather than to some other cause or causes. In addition, the Board finds most persuasive of the credibility of the veteran's allegation of the occurrence of a traumatic assault in service the fact that medical records dated as early as 1966 and the 1980s, when the veteran was not pursuing a claim for service connection for any disability, make reference to a traumatic event in service. For example, the January 1966 reports from the Salisbury VA facility noted that the veteran reported that, while in the service, "she had a traumatic experience by being seduced and having an illegitimate child". Although there is no evidence of the veteran having had a child, illegitimate or otherwise, in service and although the examiner referred to the "traumatic experience", not as rape or assault, but as her having been "seduced", the Board finds this early report lends credence to the veteran's allegation of having experienced a personal assault in service. In addition to this report, the February 1983 VA examiner noted that the veteran specifically made reference to being "raped" in service. As was the case with the January 1966 report from the Salisbury VA hospital, the February 1983 examination was initiated by VA in connection with the veteran's pension benefits and was not conducted in connection with the veteran's seeking service connection at that time for any disability. Statements made to a physician in conjunction with treatment or under other circumstances are inherently more probative than those made where interest in some sort of financial or other secondary gain may be involved. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest. . . ."); cf. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that, although interest in the outcome of a proceeding does not affect the competency to testify, it may affect the credibility of testimony). Thus, the Board finds these statements, in addition to the references to anxiety in service and the evidence of debilitating psychiatric symptoms as early as 1955, do provide the kind of credible supporting evidence contemplated by the 2002 amendments to section 3.304(f). Thus, the Board concludes that there is at least an approximate balance of positive and negative evidence in this case with regard to the issue of the occurrence of the personal assault in service, and therefore the benefit of the doubt must be resolved in favor of the veteran in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for PTSD is warranted in this case. CUE in a January 19, 1956, Rating Decision. The veteran contends that a January 1956 rating decision, in which the RO denied service connection for a nervous condition, should be revised or reversed based on CUE. The Board notes that the January 1956 rating decision was not appealed by the veteran, and thus it is final unless it is shown to be based on CUE. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). Where CUE is found in a prior rating decision, the prior decision will be reversed or revised, and for the purposes of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal or revision of the prior decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). CUE 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. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993); Russell v. Principi, 3 Vet. App. 310 (1992). In the January 1956 rating decision, the RO denied the veteran's claim for service connection for a nervous condition on the basis that the veteran had emotional problems since childhood, required only three sick bay treatments for anxiety syndrome during service, and was entirely asymptomatic at discharge and on the basis that a psychosis was first diagnosed more than one year subsequent to discharge. The veteran's representative has argued that the January 1956 rating decision included several errors which constituted CUE. The first error alleged is that the RO had not considered all the facts at the time of the January 1956 decision. The representative supports this allegation by noting that the January 1956 rating decision was partly based on a finding that the veteran required only three sick bay treatments for anxiety syndrome when, according to the representative, the record noted two additional instances of treatment for anxiety reaction. He stated that the RO ignored the finding of anxiety syndrome on a Sick Call Treatment Record dated August 10, 1953; however, the RO specifically noted this entry in the January 1956 rating decision, and therefore it was considered by the RO in rendering the decision. He also alleges that the record reveals the veteran received Seconal on July 18, 1953, purportedly for treatment of anxiety syndrome and also that the veteran was referred to a civilian doctor on February 23, 1954, for a mental disorder. The Board finds this argument is basically a disagreement as to how the facts were weighed or evaluated by the RO. A review of the service medical records reveals a July 18, 1953, entry on the Sick Call Treatment Record which does not list a complaint but indicates that treatment rendered consisted of "vv 35 sec" or "uv 35 sec." This entry, read in the context of other entries on the Sick Call Treatment Record, can reasonably be construed as indicating that the veteran was treated with ultraviolet light for 35 seconds. A July 17, 1953, entry immediately above the one in question lists a complaint of acne vulgaris with treatment consisting of "U.V. 25 sec." An individual sick slip dated July 17, 1953 indicates that the veteran had acne vulgaris which was to be treated with "ultraviol." Thus, the evidence does not indicate that the RO erred at all in not construing the July 18, 1953, sick call note as evidence of treatment for a mental disorder. The February 23, 1954, entry reads as follows: "Chit to civilian doctor re M.P." There is no indication as to what "M.P." refers to. While it could be argued that M.P. stands for mental problems, it could also be argued that it stands for menstrual problems, particularly in light of the August 1955 letter from a private physician indicating the veteran had problems with her menstrual cycle prior to active duty. No mental disorders were noted at the time of the separation examination conducted approximately one month later. Thus, because the note is ambiguous, the RO did not necessarily err in not considering that the February 23, 1954, note was indicative of the presence of a mental disorder. Accordingly, it is not clear that the RO erred in its interpretation of the sick notes at all, and it certainly has not been shown by the veteran that, even if the RO had interpreted the notes in the same manner as the veteran now interprets them, that the outcome of the RO's decision on the claim would have been manifestly different. The next allegation of CUE in the January 1956 rating decision was that the RO incorrectly relied on an "unsupported medical opinion" in its decision. The representative argues that the RO incorrectly determined that the veteran's psychiatric problems began prior to active duty based on the August 1955 letter from Dr. W., reporting that the veteran had had emotional and menstrual trouble since the age of 14, and that the RO's conclusion was without any evidentiary foundation. The representative argues that Dr. W.'s August 1955 letter did not include a conclusion as to whether the anxiety reaction diagnosed during service was the same menstrual-related condition which he treated prior to service. The representative also argues that the August 1955 letter has "no probative value" as the doctor who promulgated the letter was a family physician and not a licensed psychiatrist. Concerning this, the Board notes that there was no medical evidence of record which contradicted the August 1955 statement from the private doctor. It is not clear from his letter what Dr. W.'s area of speciality, if any, was. Regardless, a doctor's area of expertise might, in some cases, diminish, but not necessarily entirely negate, the probative value of his statements. The veteran's objections to the probative value the RO assigned to Dr. W.'s statement in 1956, therefore, do not show CUE but rather merely constitute an expression of disagreement as to how the facts were weighed or evaluated by the RO. In his substantive appeal, the representative alleged that CUE existed in the January 1956 rating decision because the RO denied the veteran the presumption of soundness set forth in 38 C.F.R. § 3.63(b) (1955) (although he cited the regulation as "38 U.S.C. § 3.639(b) (1956)"). He quoted the regulation correctly as providing, [E]very person employed in active service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to acceptance and enrollment and was not aggravated by such service. Relative to notation at enlistment, only those defects, infirmities and disorders recorded at the time of examination are to be considered noted. History of the preservice existence of defects, infirmities, or disorders recorded at the time of examination for acceptance and enrollment does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to the inception of such defects, infirmities or disorders. 38 C.F.R. § 3.63(b) (1955). The representative underlined the last sentence of the regulation, and he argued that the veteran's entrance examination was negative for any psychiatric problem and she was entitled, therefore, to the presumption of soundness. He contended that the only evidence of record which indicated that a mental problem existed prior to active duty was the August 1955 letter from Dr. W. which was deficient as the doctor's letter did not provide any medical nexus between the pre-existing condition and the in-service diagnosis of anxiety syndrome. The RO in 1956 determined that the veteran had problems prior to active duty based on a letter from a doctor who actually treated the veteran. Thus, despite the emphasis the representative placed on the last sentence of the regulation by underlining it, this was not a case where the RO relied merely on "history" of a preservice existence of a disorder provided by the veteran. Moreover, the RO correctly reported that the veteran was found to be without defects at the time of her entrance examination, indicating that it did apply the presumption of soundness, and then the RO further noted that there was evidence of record indicating that the veteran had been treated for problems prior to active duty. Thus, the RO apparently determined that there was clear and unmistakable evidence, to include Dr. W.'s letter, that demonstrated that a nervous condition existed prior to acceptance and enrollment. Moreover, the RO's notation that the veteran "required only three sick bay treatments for anxiety syndrome" and then that the discharge examination disclosed no neurologic or psychiatric condition reflected the RO's conclusion that the nervous condition was not aggravated by service. (The Board notes that rating decisions, such as the one at issue here, rendered before February 1, 1990, when 38 U.S.C. § 5104(b) was added to require RO decisions to specify the evidence considered and the reasons for the disposition, routinely lacked such specificity. Crippen v. Brown, 9 Vet. App. 412, 420 (1996)). Thus, the veteran's contention that the RO failed to apply the presumption of sound condition, or applied it incorrectly, is not shown in this case. The representative has also argued that VA made no effort to obtain a medical opinion as to a nexus between the in-service anxiety reaction and the post-service diagnosis of psychosis. However, such a failure in the duty to assist cannot be CUE. Tetro, 14 Vet. App. at 109; Caffrey, 6 Vet. App. at 382. This is true because it cannot be known whether such a medical opinion, if obtained, would have provided evidence that necessarily would have changed the outcome of the decision. See Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997); Russell, 3 Vet. App. at 313. In June 1999, the veteran's representative submitted another "claim" in which he stated that issue involved was the failure to adjudicate a claim for a nervous condition/anxiety disorder as raised by the medical records and the formal claim of August 4, 1955. In this claim, the representative alleged that in August 1955 the veteran claimed service connection for a "nervous condition" and the January 1956 rating decision had denied service connection for a "psychosis". He alleged that VA had not adjudicated the claim for a nervous condition other than a psychosis and that claim remained an unadjudicated claim. He therefore requested that the RO adjudicate the claim for service connection for a nervous condition/anxiety disorder. The RO adjudicated this "claim" in a May 2000 decision which is the subject of the remand below. However, assuming, without deciding, that the veteran meant this to be another allegation of CUE in the January 1956 rating decision, the Board notes that any failure by the RO to adjudicate the claim in accordance with procedural requirements mandated by law or regulation would merely result in a pending claim as opposed to a final denial of a claim. Therefore, there is no final adverse RO decision that could be subject to a CUE attack. See Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). Hence, the Board concludes that an argument that the RO failed to adjudicate a claim in the January 1956 rating decision cannot be CUE. For the reasons and bases articulated above, the Board concludes that revision or reversal of the January 19, 1956, rating decision denying service connection for a nervous condition on the basis of CUE is not warranted in this case. ORDER New and material evidence having been submitted, the claim for service connection for PTSD is reopened. Service connection for PTSD is granted. The claim for reversal or revision, based on clear and unmistakable error, of a January 19, 1956, rating decision, which denied service connection for a nervous condition, is denied. REMAND In June 1999, the veteran's representative submitted another "claim" in which he stated that issue involved was the failure to adjudicate a claim for a nervous condition/anxiety disorder as raised by the medical records and the formal claim of August 4, 1955. In this claim, the representative alleged that in August 1955 the veteran claimed service connection for a "nervous condition" and the January 1956 rating decision had denied service connection for a "psychosis". He alleged that VA had not adjudicated the claim for a nervous condition other than a psychosis and that claim remained an unadjudicated claim. He therefore requested that the RO adjudicate the claim for service connection for a nervous condition/anxiety disorder. In a May 2000 decision, the RO denied service connection for a nervous condition/anxiety disorder and the veteran was informed of the decision in June 2000. In May 2001, the veteran's representative submitted a timely notice of disagreement with the May 2000 rating decision. The RO has not issued a statement of the case pertaining to that issue. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case, and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1998). Accordingly, the matter of entitlement to service connection for a nervous condition/anxiety disorder is REMANDED for the following: After reviewing the claim of entitlement to service connection for a nervous condition/anxiety disorder in light of the VCAA, and if the claim remains denied, the RO should provide the appellant and her representative with an appropriate statement of the case on that issue, and give them the opportunity to respond. If the veteran perfects her appeal by timely submitting a substantive appeal, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. KATHLEEN K. GALLAGHER Acting 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.