Citation Nr: 1120107	
Decision Date: 05/24/11    Archive Date: 06/06/11

DOCKET NO.  09-31 421	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to an earlier effective date for the grant of service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Kenneth M. Carpenter, Attorney


ATTORNEY FOR THE BOARD

A.G. Alderman, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1967 to March 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas that granted service connection for PTSD and assigned an effective date of February 18, 1999.


FINDING OF FACT

At the time of the 1983 rating decision, the Veteran had not provided sufficient information for VA to obtain unit histories, evidence of a diagnosis of PTSD, evidence of participation in combat in Vietnam, or any other evidence, to include stressor statements, to support his claim seeking service connection for an acquired psychiatric disorder, claimed as delayed stress disorder.


CONCLUSION OF LAW

The criteria for an effective date prior to February 18, 1999, for grant of VA benefits for PTSD have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran originally filed a claim seeking service connection for delayed stress disorder in January 1983.  The RO denied entitlement to service connection for bipolar disorder, schizotypal personality disorder, and PTSD in August 1983.  

In February 1999, he filed to reopen his claim seeking service connection for PTSD.  Service connection for PTSD was eventually granted in May 2008 and assigned an effective date of February 18, 1999, the date VA received his request to reopen the claim.  

The Veteran appealed and seeks an effective date of January 6, 1983, the date VA received his original claim, because the eventual grant of service connection was based, in part, upon service department records that were available, but not obtained, at the time the initial claim was decided.

I.  Facts

The RO received the Veteran's claim seeking service connection for delayed stress syndrome on January 6, 1983.  On January 27, 1983, the RO sent a letter requesting evidence showing that he had been treated since service for an acquired psychiatric disability.  

Importantly, this letter specifically asked the Veteran to provide statements from treating doctors that indicated treatment dates, findings, and diagnosis of his alleged acquired psychiatric disability.  The letter also requested copies of service treatment records (STRs) and other items such as marriage licenses and birth certificates.  Unfortunately, he did not provide information as to any relevant treatment received during or after service; did not provide any information as to an event, injury, or disease incurred during service to which his delayed stress syndrome could be related; and did not present evidence of a current disability.

In addition to requesting evidence from the Veteran, the RO obtained STRs and service personnel records.  STRs include a March 1971 Report of Medical History showing self-report of depression and nervousness; the reviewing physician did not address the conditions.  The March 1971 separation examination shows normal mental health.  None of the STRs show complaints or treatment of acquired psychiatric disabilities or injuries or complaints related to combat that could be considered stressors for PTSD purposes, providing evidence against this claim.

The Veteran's DD Form 214 shows that he received the National Defense Service Medal (NDSM), the Vietnam Service Medal (VSM), and the Vietnam Campaign Medal (VCM); however, there is no indication of receipt of combat-related citations such as the Purple Heart Medal or the Combat Infantryman Badge.  Additionally, his DD Form 214 and service personnel records indicate that his principal in-service duty was heavy vehicle driver.  The records do not suggest that the Veteran participated in combat with the enemy during service.

The RO scheduled a VA examination to determine the nature and etiology of his alleged acquired psychiatric disabilities; however, the Veteran failed to appear because he was hospitalized.  The RO obtained the hospital summary which indicates that he reported having a non-combat role in Vietnam; service was not otherwise discussed.  More importantly, nothing was noted in the summary that could be construed as PTSD stressors.  The diagnosis was alcoholism and schizotypal personality.  Hospital records dated in 1982 address alcohol and substance abuse problems but do not mention service or service related events.  The diagnosis was bipolar disorder and depression.  Treatment records do not show diagnosis of PTSD or indicate that any of the acquired psychiatric disorders, i.e. depression, bipolar disorder, or schizotypal personality, are in any way related to service, providing more evidence against this claim.

In March 1983, the RO denied the claim because the Veteran failed to report for his VA examination; however, he was notified that if he would report for a subsequent examination, the RO would reconsider his claim.  The Veteran did not respond.  Consequently, in August 1983 the RO continued the denial, finding that the Veteran failed to report for his VA examination and failed to provide a stressor statement.  The RO noted that STRs were silent for psychiatric conditions and that while he noted nervous trouble on his separation questionnaire, he did not specify the nature of his complaint.  The separation psychiatric examination was normal.  The RO summarized the hospital treatment records and noted that the Veteran reported a non-combat role in Vietnam but did not further describe his experiences there.  

Based on the evidence, the RO denied the claim because schizotypal personality, or personality disorder, is not a disability under VA law; because evidence did not show that bipolar disorder was incurred during or aggravated by service; and because PTSD was not shown by the evidence of record.

The Veteran filed his current claim in February 1999.  He provided evidence of a PTSD diagnosis and stressor statements.   The stressor statements indicate that his duty in Vietnam involved driving and serving as a gunner while running convoys and that at times, his convoys were subject to mortar attacks, sniper fire and small arms fire.   He obtained unit histories of the 669th Transportation Company and 523rd Transportation Company from the Joint Services Records Research Center (JSSRC) and submitted them for consideration.  The RO found that the unit histories supported his stressor statements and granted service connection for PTSD.  The RO assigned an effective date of February 18, 1999, the date VA received the claim.

II.  Analysis

As noted above, the Veteran seeks an effective date of January 6, 1983, the date VA received his original delayed stress disorder claim, for the grant of service connection because the grant was based, in part, upon service department records that were available, but not obtained, at the time the initial claim was decided.

The effective date of an award based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the new claim or the date entitlement arose, whichever is later.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(r).  Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of 38 C.F.R. § 3.156.  Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease.  38 C.F.R. § 3.156(c)(1).  Records that are not included are records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.  38 C.F.R. § 3.156(c)(2).  An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.  38 C.F.R. § 3.156(c)(3).

In determining the effective date of award, the Board is required to look to all communications in the file which may be construed as a formal or an informal claim and, then, to all other evidence in the record to determine the "earliest date of which," within the year prior to the claim, the increase in disability was ascertainable.  Quarles v. Derwinski, 3. Vet. App. 129, 134 (1992).

Appellate review of a rating decision is initiated by a notice of disagreement and completed substantive appeal after a statement of the case has been furnished.  38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200.  Failure to perfect an appeal renders a rating decision final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103.  A final decision is generally not subject to revision on the same factual basis.  38 C.F.R. § 3.104(a).

Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE).  38 C.F.R. § 3.105(a).  The issue of CUE (which must be specific) has not been raised in this claim.

A.  38 C.F.R. § 3.156(c)(2)

In his notice of disagreement, the Veteran argues that VA misapplied 38 C.F.R.  § 3.156(c)(2) and that he is entitled to the January 1983 effective date under 38 C.F.R. § 3.156(c)(1) and (3).  In support of his argument, he refers to Vigil v. Peake, 22 Vet.App. 63 (2008).  In Vigil, Appellant filed a claim of entitlement to service connection for PTSD in December 1980.  The claim was denied because he did not have a valid PTSD diagnosis.  In 1989, Appellant filed a claim to reopen, supported by a PTSD diagnosis.  VA reopened and sought records from the U.S. Armed Services Center for Research of Unit Records(USACRUR) to confirm his stressors.  VA awarded service connection for PTSD with a 1989 effective date.  The Appellant appealed the effective date.  The Board denied the appeal because the USACRUR records were not the type of records contemplated by 38 C.F.R. § 3.156(c) and because the Appellant did not have a PTSD diagnosis in 1980.

Essentially, the Court found that the Board failed to liberally apply the criteria under 38 C.F.R. § 3.156(c) when determining whether the records were of the type contemplated by the regulation, and remanded the matter for reconsideration.  Importantly, the Court did not determine whether 38 C.F.R. § 3.156(c) was applicable to the Appellant's claim or whether the exceptions under 38 C.F.R. § 3.156(c)(2) were applicable.  The Court determined only that the Board needed to examine 38 C.F.R. § 3.156(c) under the liberal standards as explained in the "clarifying statement" as published at New and Material Evidence, 70 Fed. Reg. 35,388 (proposed June 20, 2005) (codified at 38 C.F.R. pt 3.).

While the facts and analysis of Vigil do not support the Veteran's claim, the Court does address the fact that 38 C.F.R. § 3.156(c) was amended and points to VA's "clarifying statement" regarding the changes to 38 C.F.R. § 3.156(c) as published at New and Material Evidence, 70 Fed. Reg. 35,388 (proposed June 20, 2005) (codified at 38 C.F.R. pt 3.).  The "clarifying statement" notes that: 

" '[a]n award based all or in part on the records identified by ... this section is effective on the date entitlement arose or the date VA received the previously decided claim.' " New and Material Evidence, 70 Fed.Reg. at 35,389 (quoting the proposed § 3.156(c)). Moreover, by way of specific example, the Secretary notes that when an initial claim is denied because of a lack of evidence of an in-service injury, but is later granted based in part on subsequently acquired service records establishing the in-service injury and new medical evidence showing a nexus between a current disability and that in-service injury, the claimant is entitled to a retroactive evaluation of the disability to assess a proper effective date which would be the date of the original claim or the date entitlement otherwise arose, whichever is later.  Id.  In this sense, the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted.  See id.

Vigil,  22 Vet.App. at 66.  

In the case before the Board at this time, the Board does not deny that 38 C.F.R. § 3.156(c) must be considered since VA received unit histories of the 669th Transportation Company and 523rd Transportation Company subsequent to the 1983 rating decision.  These records are relevant official service department records that existed and had not been associated with the claims file in 1983.  However, the question remains as to whether an earlier effective date is precluded by the exceptions under 38 C.F.R. § 3.156(c)(2).

In the substantive appeal, the Veteran acknowledges that 38 C.F.R. § 3.156(c)(2) provides two circumstances under which earlier effective dates under 38 C.F.R. § 3.156(c)(1) are not warranted.  The first scenario involves records that VA could not have obtained when deciding the claim because the records did not exist at that time.  He argues that since the unit histories existed at the time he filed his initial claim in 1983, that the first provision does not apply.  The Board agrees.

It is also argued that the second provision, involving circumstances when claimants fail to provide sufficient information for VA to identify and obtain records from the respective service department, the JSSRC, or from any other official source, does not apply.  In this case, the Board strongly disagrees.

In his substantive appeal, he states that VA never asked him to provide information regarding his service records.  While VA's duties to notify and assist were not as defined in 1983 as they are currently under the Veterans Claims Assistance Act of 2000 (VCAA), on January 27, 1983, VA sent the Veteran a letter asking for pertinent information, including copies of records and other evidence to support his claim.

The Board makes the factual determination that the RO did, in fact, ask for information that would have supported the Veteran's claim, which would have included his service records if they would have provided a basis to grant this claim.  Importantly, the RO noted that the "best type" of evidence to submit would be statements from doctors who have treated you during this period.  This statement ("best type" of evidence) is factually correct, but it is not exclusive to the evidence the Veteran should submit to develop his claim.  

That letter was sent to his then current address of record and not returned as undeliverable.  There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties."  United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach).  This presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary."  Schoolman v. West, 12 Vet. App. 307, 310 (1999).  Therefore, the Board finds that VA asked the Veteran to provide evidence in support of his claim, including service records if they would help support his claim (or at the very least, tell the RO that these records would support his claim).  Therefore, this argument is without merit.

The Veteran also mentions that VA's only efforts concerning his service personnel records involved determining whether his discharge constituted a bar to VA benefits.  In fact, VA determined that his discharge status was not a bar.  Regardless, the Veteran's service personnel records were obtained and reviewed; however, they do not show any indication that the Veteran was involved in combat in Vietnam or that he was exposed to any stressors during his service that would provide a basis to grant this claim.  His duty was noted as a heavy vehicle driver and he received no combat related awards.  In 1983, there was no reason for the RO to believe that if it obtained the unit histories of the 669th Transportation Company and 523rd Transportation Company it would provide a basis to grant this claim because the Veteran provided no reasons for such a belief.  

In this regard, it is important to note that the Veteran's representative is attempting to place the standards of 2011 into 1983 without any rational basis.  The argument of the representative asks the RO in 1983 (a point at which the Court itself did not exist) to undertake the unachievable: obtain service records that it did not know exists and did not know would support the Veteran's claim in order to confirm a stressor that was not cited by the Veteran based, in part, on Court decisions that did not, at that time, exist, from a Court that, at that time, did not exist, and on laws (the VCAA) that, at that time, did not exist.   

The logic of the representative argument fails on several levels.  What if, for example, the stressor in question had occurred while the Veteran was in basic training or while he was visiting another unit?  Did the RO in 1983 have a duty to obtain unit histories of all units in Vietnam during the Vietnam War attempting to verify a stressor that the Veteran himself had never indicated?

It is also argued that the RO erred in July 2009 when it determined that he did not provide sufficient information for VA to identify and obtain unit records in 1983.  In support of his argument, he said VA has overlooked the fact that he provided sufficient information in June 1997 for VA to obtain the service department records which provided the basis for the award of service connection.  

Briefly, the claims file does not contain any statements from the Veteran dated June 1997; however, he submitted a detailed stressor statement in June 2007.  The first medical evidence referencing stressors is dated January 1999 while the first actual stressor statement was received in November 1999.  Regardless, the Board does not contest the Veteran's argument.  During the pendency of the current claim, he did, in fact, provide sufficient information so that his unit records could be identified as relevant and obtained.  However, this information was not available in 1983.  In 1983, VA had no indication that unit records were pertinent to his claim as the only communication from the Veteran, despite VA efforts, at that time consisted of his claims form, VA Form 21-526, which stated simply that he wanted service connection for delayed stress syndrome.  His service personnel records showed that he was a heavy vehicle driver.  STRs did not indicate participation in or exposure to combat and his DD Form 214 did not show receipt of any combat-related awards.  Further, while he was treated for other acquired psychiatric disabilities in 1982 and 1983, the records do not show that he ever discussed service, other than to report having a non-combat role in Vietnam, providing what the Board would describe as evidence against his claim.  He did not provide stressor statements and did not indicate that he was willing to report for a VA examination.  Finally, the evidence did not include a diagnosis of PTSD.

As noted above, it was not until November 1999 that he provided a stressor statement indicating that his transportation units were involved in attacks and/or other combat-related incidents.  Prior to November 1999, VA had no information whatsoever to indicate that he had combat experience or a stressor.  Therefore, the Board finds that the Veteran failed to provide sufficient information for VA to identify and obtain the unit records from the JSRRC in 1983.  It is well noted that while the duty to assist is neither optional nor discretionary (See Littke v. Derwinski, 1 Vet. App. 90, 92 (1991)), the duty is not always a one-way street; nor is it a "blind alley."  Olson v. Principi, 3 Vet. App. 480, 483 (1992).  "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the veteran only in a passive role."  Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (citations omitted).  See also Counts v. Brown, 6 Vet. App. 474, 476 (1994).

As noted in Smith v. Derwinski, 2 Vet. App. 429, 432 (1992), the duty to assist is not unlimited in scope and requires of the VA only those actions which are reasonable under the circumstances involved.  Further, VA has no duty to develop evidence supporting a claim when there is no reasonable possibility that assistance will aid in substantiating the claim.  38 C.F.R. 3.159(d); See Forcier v. Nicholson, 19 Vet.App. 414, 423 (2006) (VA must assist in developing evidence that supports the existence of stressors unless there is no reasonable possibility that assistance will substantiate the claim).  Thus, based upon the evidence of record, or lack of evidence, at the time of the 1983 claim, to include the lack of a diagnosis, stressor statements, or indication of combat, the Board finds that the RO's actions in 1983 were reasonable and that it had had no reason to engage in a fishing expedition to prove the Veteran's claim when he clearly failed to help himself by refusing to reschedule his VA examination or provide any evidence in support of his claim.  Thus, because the Veteran failed to provide enough information to indicate the possible relevance of unit records at the time of his 1983 claim, he is not entitled to the January 6, 1983 effective date under 38 C.F.R. § 3.156(c)(1).

B.  38 C.F.R. § 3.156(c)(3)

Even if the Board assumes, arguendo, that the RO had had enough information to identify and reason to obtain the Veteran's unit histories in 1983, under 38 C.F.R. § 3.156(c)(3) the effective date would still be either the date entitlement arose or the date of the 1983 claim, whichever is later.  Here, the evidence fails to show that the Veteran had a diagnosis of PTSD in 1983.  More importantly, per his own admission to medical providers, he was not allegedly diagnosed with PTSD until the late 1990s.

It is well understood that the cornerstone of any service connection claim is the existence of a current disability.  38 C.F.R. § 3.304(f).  Service connection for PTSD requires (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).

A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  See 38 C.F.R. § 3.304(f).

Some VA treatment records show that the Veteran first reported being diagnosed with PTSD in 1996 while others show 1999.  The medical evidence does not show a diagnosis of PTSD conforming to the DSM-IV criteria until September 1999.  Therefore, even assuming that the RO had a duty to obtain unit histories in 1983, the evidence of record shows that entitlement to service connection did not arise until September 1999.

In sum, the Veteran failed to provide sufficient information for VA to identify and obtain the unit histories from the JSSRC in 1983; therefore, the Veteran is not entitled to an effective date of January 6, 1983 under 38 C.F.R. § 3.156(c).  He is not entitled to any other effective date prior to February 18, 1999, the date of the most recent claim, because effective dates are assigned based upon the date of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.  Since the date of claim is later than the Veteran's alleged diagnosis of PTSD in 1996 and earlier than the September 1999 diagnosis of PTSD pursuant to the DSM-IV criteria, the date of claim, February 18, 1999, is the appropriate effective date for service connection.

C.  Other factual determinations in this case.

Beyond even points (A) & (B), even if one assumes that that the RO had had enough information to identify, and reason to obtain, the Veteran's unit histories in 1983, and even if there were some indications of PTSD or an acquired psychiatric disability associated with service in 1983, the Board concludes that this claim before it should be denied for the most basic of reasons: the Veteran does not have PTSD.  A review of the evidence of record clearly indicates to the Board that the Veteran has a long history of alcoholism and drug abuse with a secondary diagnosis of a personality disorder that has no connection to the Veteran's military service, and nothing more.  The determination that the Veteran has PTSD or any disability related to service is, at best, highly unclear, in light of the Veteran's history, which was clearly cited within a VA examination dated March 2008.  This history included a mother who was hospitalized for psychiatric reasons an unknown number of times and a number of problems the Veteran had well before any alleged stressor in service allegedly caused PTSD.  The history of problems the Veteran has prior to service is unusually clear from the record.  The Veteran himself did not know he had PTSD until diagnosed by Dr. B. in 1999 (see psychosocial assessment dated September 1999).  He indicates a medical history in Vietnam that is simply not accurate (being admitted to "KHE hospital" and medicated for two days with "downers" in service did not occur: the Veteran himself failed to note this treatment at his discharge examination and the Veteran's service records are highly detailed).  Further, in treatment after service the Veteran makes little reference to any problems associated with his military service.   Based on the Veteran's conflicting statements, the Board finds that the Veteran is not credible to the extent that he reports the onset of his problems and other facts associated with his military service (which have formed the core of the grant of service connection for PTSD by the RO).  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." 

In this regard, the Board will not reverse the determination of the RO in May 2008 that made the determination that the Veteran has PTSD at this time (overturning a prior Board determination that the Veteran did not have PTSD dated February 2004).  However, in order to address the claim before the Board, it is being asked to assume a fact that it is not in accord with (that the Veteran has a disability related to his military service).  In this usual situation, the Board cannot fully address the claim of entitlement to an earlier effective date for the grant of service connection for PTSD without addressing, to some degree, whether the Veteran has PTSD at this time, notwithstanding any determination to the contrary, because, in his argument to the Board, the Veteran's representative assumes that the Veteran: (a) has PTSD; and (b) that he had PTSD in 1983.  The Board does not make such an supposition.  Therefore (for example), any argument that the Veteran should have a VA examination to determine when his PTSD began would be rendered moot by this finding by the Board.  

Beyond even this point, the Board must note that the argument above does not negate the fact that the Veteran never timely appealed the 1983 rating action.  The Veteran has not specifically raised the issue of CUE, and this issue is not before the Board at this time.  Nevertheless, the Board believes it must address, in part, this issue.  As stated by the Court:

(1) "[e]ither the correct facts, as they were known at that 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 the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.

Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)).

The Board wishes to emphasize that the Court has consistently stressed the rigorous nature of the concept of CUE.  "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts."  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  Clear and unmistakable error "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made."  Russell, 3 Vet. App. at 313-14.  "It must always be remembered that CUE is a very specific and rare kind of 'error.'"  Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  A disagreement with how the Board evaluated the facts is inadequate to raise the claim of clear and unmistakable error.  Luallen v. Brown, 8 Vet. App. 92, 95 (1995).  A disagreement over how the facts were weighed and evaluated cannot rise to the level of a valid claim of CUE.  A difference of opinion over how facts should be viewed rises only to the level of a disagreement over how facts should be weighed and evaluated and cannot reach the level of CUE.  

In this case, were the issue raised, the Board could find no basis for a finding of CUE in the 1983 rating action for reasons it has attempted to make clear.    

The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the- doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010).

The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (RO).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Here, the Veteran is challenging the effective date assigned following the grant of service connection.  In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA outpatient treatment records.  The Veteran submitted multiple statements in support of his claim and was afforded VA medical examinations.  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

The appeal is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs