Citation Nr: 1121940 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 08-38 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date prior to November 1, 2006 for the award of service connection for posttraumatic stress disorder (PTSD), to include whether there was clear and unmistakable error (CUE) committed in prior rating decisions. REPRESENTATION Appellant represented by: African American PTSD Association WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1980 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned such award of service connection as effective November 1, 2006-the date on which she filed her claim to reopen service connection for PTSD. The Veteran timely appealed the effective date assigned for that award. The Veteran testified in a personal hearing before a Decision Review Officer (DRO) in May 2009 at the Seattle, Washington RO. Additionally, the Veteran also testified in a Travel Board hearing before the undersigned Acting Veterans Law Judge in April 2011 from Seattle, Washington; transcripts of those hearings are associated with the claims file. The issues of entitlement to an increased evaluation for PTSD and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran did not file a claim for PTSD or any other psychiatric disorder in 1993, when she filed a claim for compensation benefits for several other physical ailments; the September 1993 rating decision did not address any claim for compensation benefits for a psychiatric disorder. 2. The September 2003 rating decision which denied service connection for PTSD is considered final. 3. The September 2003 rating decision, denying entitlement to service connection for PTSD, was supportable by the evidence then of record and was consistent with the applicable law and regulations extant at that time. 4. The responses received from September 2003 and October 2003, following the denial of the Veteran's claim of service connection for PTSD in September 2003, are not written correspondences from the Veteran or her representative noting disagreement with or a desire to appeal the September 2003 rating decision, but instead are correspondences from a congressional clerk; those correspondences are not notices of disagreement with the September 2003 rating decision. 5. The Veteran's submitted Stars and Stripes newspaper article and statement from a fellow servicemember with her November 2006 claim to reopen are not official service department documents. 6. The Veteran's claim to reopen service connection for PTSD was received by the RO on November 1, 2006, the earliest possible effective date for entitlement to compensation benefits for PTSD. CONCLUSIONS OF LAW 1. The unappealed September 2003 rating decision, denying service connection for PTSD, does not contain CUE. 38 U.S.C.A. §§ 5109A, 7105 (West 1991 & West 2002); 38 C.F.R. § 3.105(a) (2010). 2. The criteria for an effective date earlier than November 1, 2006, for the award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2002-2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran was discharged from military service in August 1992. On February 4, 1993, VA received a formal claim for compensation benefits from the Veteran. That form indicated that the Veteran wished to claim compensation benefits for the following, as quoted from that form directly: (1) Migraine headaches - 82 (2) High Blood Pressure - 1984 (3) Hearing - loss of high pitch - 86 (4) 2 cysts - right wrist and left hand - 86/87 (5) Both knees RPPS - 86 (6) Arthritis in Neck - 90 (7) Pain in chest due to Neck - 90 (8) Abnormal cells [of the cervix/]cervical cancer - 1992 (9) Numbness due to C-section (92) (10) Lower Back Pain - 90 (11) Arthritis in both knees - 86 (12) Recurring yeast infections The Board notes that none of these claims are for a psychiatric disorder, including PTSD. All of those claimed disorders were denied in a September 1993 rating decision with the exception of the Veteran's hypertension and ganglion cysts of her right wrist and left hand, which were granted at that time and assigned 10 percent and noncompensable disability ratings, effective August 13, 1992, respectively. The Veteran was notified of that decision in an October 1993 letter; no correspondence from the Veteran regarding that 1993 decision is of record. The Board notes the next two items in the file are August 1994 printouts regarding Social Security information, and a request for a new hypertensive examination dated March 1995. The Board notes that on September 11, 2002, the Veteran filed to reopen several of the claims from her 1993 claim. That informal claim included claims for service connection for PTSD and depression. A September 2002 letter gave the Veteran notice as to how to substantiate her claims, and asked her to provide specific information as to her PTSD stressor from service. The Veteran submitted a stressor statement, dated September 2002, which indicated that in 1986, at her station in Friesen, Germany, a terrorist attack by the "Red Army" occurred when three bombs went off. A separate stressor information statement submitted by the Veteran, date-stamped September 11, 2002, indicated that "on or about January 1986" the Veteran's tactical station in Friesen, Germany was hit with three timed bombs by the Red Army. She indicated that there was "10 million dollars of government equipment destroyed" by the attack. A June 2003 VA psychiatric examination noted that the Veteran had a diagnosis of PTSD at that time, which was provisional pending administrative verification of the reported military stressor. Such provisional diagnosis of PTSD was related to the effect of the bomb episode in the military. Internet articles associated with the claims file at that time demonstrate several bombings and attacks in Germany at that time, including in August 1985, November 1985 and April 1986; the Board notes that the April 1986 bombing famously led to President Reagan ordering bombing raids against Libya for its roll in that April 1986 bombing of a disco. However, none of these corroborated incidents matched the description of the Veteran's bombing incident of a tactical facility without any injuries or fatalities involved. In a September 2003 rating decision, the RO denied the Veteran's claim for PTSD and depression. The Veteran's PTSD claim was denied at that time for a lack of a verified in-service stressor. It noted the above internet search as well as the failure to corroborate the Veteran's described stressor incident during military service. The Veteran was notified of the denial in a September 2003 letter, specifically noting the Veteran's appellate rights. The Board notes that the RO received an email from a congressional staffer, Ms. R.C., the day prior to the notification letter being sent, which asked for an updated status of the Veteran's claim. The RO contacted the Ms. R.C. in October 2003 by telephone to inform her of the status of the Veteran's case. The RO again received an email from Ms. R.C. on October 28, 2003, expressing that the Veteran told her she was upset about how VA attempted to corroborate her in-service stressor at that time by using an internet search. The email additionally asked if the RO had obtained an "after action report" about an attack on Friesen, Germany "in or around the time of January 1986." She was asking specifically about any Army Records that VA had attempted to obtain regarding such an attack at Friesen, as the military should have some record of such attack. In the record, on the same day, a "Seattle 'Congressional' Mapping the Message Template" noted that the Veteran was inquiring why VA had not requested Army verification of the terrorist attack and was specifically asking about an after action report for her unit in or around the time of January 1986. It also noted on that form that there was "No letter from the Veteran. Email from [Ms. R.C.] only." A December 3, 2003 Report of Contact indicated that the RO again called Ms. R.C. in response to her inquiry on behalf of the Veteran. It was explained to Ms. R.C. that the Veteran's service medical and personnel records did not document any treatment for injuries or illness due to either a car accident or terrorist attack, nor did any of those records corroborate either such occurrence. Ms. R.C. was further informed that a request was made to the Army for records which would substantiate the terrorist attack, "but this was also negative for substantiating evidence." Finally, it was explained that an internet search was conducted as a "final effort to find any indication of the terrorist attack [the Veteran] contended," but that such a search did not produce any corroborating evidence. VA informed Ms. R.C. that VA had "exhausted all available resources for obtaining evidence to support [the Veteran's] claim, but that [VA] would be glad to consider any additional evidence she might be able to provide in support of her claim." Ms. R.C. stated that she was satisfied with the answer VA gave her and that VA could close the inquiry. The Board notes that no direct communication from the Veteran or her representative, the African American PTSD Association, was ever received throughout this congressional inquiry process. On November 1, 2006, VA received a claim to reopen every denied claim in 1993 and 2002 "because of CUE's on the part of VA." She indicated that assistance "should have been provided was not because [VA] indicated there was no record" of the incidents and injuries she claimed. She further stated that she "was not only able to find this information in my military service medical records but also service members that worked in command positions that verified my story and wrote statements of such." With her November 1, 2006 claim to reopen, the Veteran submitted a PTSD stressor statement, essentially detailing the same incident that occurred before, but changed her date to September 1985 and changed the place of occurrence to Reitscheid, Germany. The Veteran also submitted a statement from a fellow servicemember corroborating the terrorist attack. Moreover, the Veteran submitted a newspaper article from Stars and Stripes documenting the terrorist attack in September 1985. Later, the Veteran submitted an undated statement noting that she was confused due to her mental condition in 2003 when she stated the geographic location of the incident, confusing Friesen with Reitscheid. The Veteran admitted that she was not correct on the date and location of the incident until contacting the fellow servicemember in January 2005. In the January 2008 rating decision, service connection for PTSD was granted on the basis of the Stars and Stripes newspaper article which corroborated the incident as occurring in September 1985 in Reitscheid, Germany. It specifically noted that such was new and material evidence and noted the discrepancy in the earlier date and place provided. That rating decision further noted that no CUE was committed in September 2003 because of the incorrect information that was provided by the Veteran at that time could not corroborate her in-service stressor. It noted that the internet articles of record at that time did not corroborate the Veteran's claimed stressor, and that such was not undebatably erroneous and was an exercise in judgment made by the RO. In a statement dated February 2008, the Veteran stated that she should have been awarded retroactive payment for her PTSD back to her 1993 filing because of the information that she provided corroborated her stressor and that "each denial was returned to [VA] with a timely filed CUE." Several statements from the Veteran make the same arguments for an earlier effective date on the basis of CUE, including in a September 2008 statement where she indicated that she provided "the Stars and Stripes newspaper and other government resources" to corroborate her stressor. The Board notes that in the Veteran's May 2009 DRO hearing the Veteran and her representative stated that CUE was committed in September 2003 when VA failed to adequately fulfill their duty to assist the Veteran by failing to get records corroborating the incident from the Veteran's unit, which she had adequately provided. Following that hearing, the DRO issued a June 2009 supplemental statement of the case again denying entitlement to an earlier effective date. The DRO specifically addressed the Veteran's CUE contentions, stating that, "Thus far, the Court of Appeals for Veterans' Claims has ruled VA's lack of duty to assist a Veteran in proving his claim does not rise to the very high standard of clear and unmistakable [error.]" The Veteran submitted a July 2009 substantive appeal, VA Form 9, indicating that she wished to appeal all of the issues listed on the supplemental statement of the case and that she wished to have a hearing before the Board. The Veteran argued specifically that she provided the necessary information when she filed her prior claims but that VA's clerks failed to adequately assist her in substantiating her claim, because she was able to find the information herself where VA had failed to find it for her. Such argument as to CUE in prior rating decisions was further advanced in the April 2011 hearing before the undersigned. During that hearing, the Veteran reiterated the incident that occurred in September 1985. She indicated that nobody was injured during that attack and that it was approximately 10 million dollars of equipment damage. The Veteran stated that she filed for benefits for depression within one year of her discharge from service; she further seemed to indicate that she was depressed and receiving treatment for such condition at that time. She also indicated that she was denied in 2003 for PTSD and that she reopened her claim in 2006. Jurisdiction of the Board The Board notes that the Veteran's claim of service connection for PTSD was granted in a January 2008 rating decision. That January 2008 rating decision specifically addressed the Veteran's contentions of CUE in prior rating decisions, particularly the September 1993 and September 2003 rating decisions. Such claims of CUE were denied at that time. The Veteran's contentions in several statements, including her November 2008 notice of disagreement, continued to assert claims of CUE with prior rating decisions as a basis of entitlement to an earlier effective date-alternatively in 1993 or 2002 at different times. The Board construes these statements to be a notice of disagreement as to the issue of CUE. See 38 C.F.R. § 20.201 (2010); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (VA has an obligation to liberally construe the pleadings of a claimant to discern all issues raised in the record); Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006) (VA is required to construe all of a pro se Veteran's pleadings sympathetically); Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007). While the Board notes that VA issued a November 2008 statement of the case to the Veteran on the earlier effective date issue, the statement of the case did not specifically address the alleged CUE issues. However, the Board will further note that the Veteran continued to submit evidence and argument, culminating in the issuance of a supplemental statement of the case in June 2009. That June 2009 supplemental statement of the case stated, "Thus far, the Court of Appeals for Veterans' Claims has ruled VA's lack of duty to assist a Veteran in proving his claim does not rise to the very high stand of clear and unmistakable [error.]" The Veteran submitted a timely substantive appeal, VA Form 9, to that supplemental statement of the case in July 2009; she checked the box on that substantive appeal form indicating that she wished to appeal all of the issues listed in that supplemental statement of the case. Given that the June 2009 supplemental statement of the case readjudicated the Veteran's CUE claims, and the Veteran timely submitted a substantive appeal with that supplemental statement of the case indicating that she wished to continue the appeal as to all issues addressed in that supplemental statement of the case, the Board finds that it has jurisdiction over the CUE issues as well as the earlier effective date issue in this case. See 38 C.F.R. §§ 20.200, 20.202 (2010). Additionally, the Board further notes that its assumption of jurisdiction over the CUE issues in this case are nonprejudicial to the Veteran. Specifically, the Board notes that the Seattle RO has adjudicated the CUE issues in its January 2008 rating decision and issued a June 2009 supplemental statement of the case addressing that issue as well. Moreover, an integral part of the Veteran's argument for an earlier effective date for the award from PTSD has consistently been the allegations of CUE in prior rating decisions throughout the appeal period. Such allegations were specifically addressed in both the Veteran's DRO hearing as well as the hearing before the undersigned in April 2011. Therefore, the Board finds that the Veteran is not prejudiced in this case as to the Board assuming jurisdiction over the CUE claims, that the Veteran has had ample opportunity to have such issues addressed by the RO, that she indicated that she wished to finalize appeal as to that issue in her July 2009 substantive appeal, and that she has fully participated in the adjudication of those CUE claims by providing numerous statements throughout the appeal period and giving oral testimony at a DRO and before the undersigned. Accordingly, the Board finds that it has jurisdiction over the CUE issues and that adjudication of those issues is nonprejudical at this time. Moreover, it finds that any flaws in the procedure of the appellate process and that the Board's assumption of jurisdiction of the ripe CUE issues in this case is harmless error. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's earlier effective date claim for the award of service connection for PTSD arises from an appeal of the initial evaluation and assignment of an effective date following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA for the earlier effective date claim in this case. Moreover, given the parameters of the law surrounding CUE claims (as explained in more detail below), the duties to notify and assist imposed by VCAA are not applicable where CUE is claimed in RO decisions. See Parker v. Principi, 15 Vet. App. 407 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (VCAA is inapplicable to CUE claims in Board decisions). A claim based on CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. See Livesay, 15 Vet. App. at 178-79. Moreover, that litigant has the burden of establishing such error on the basis of the evidence then of record. See Id. (emphasis added). Considering the record in light of the above and in view of the Board's dismissal of the CUE claim for pleading insufficiency, any further discussion of any VA notification or development duties owed the Veteran in connection to her CUE claims is unnecessary. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a hearing before the undersigned in April 2011 as well as before a DRO in May 2009. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Analysis Unless specifically provided otherwise, the effective date of an award of compensation based on a claim, which has been reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. Awards based on new and material evidence received after final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii), (r) (2002-2010). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155 (2002-2010). As to claims for CUE, a decision of a duly constituted rating agency or other agency of original jurisdiction will be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification of such. See 38 C.F.R. § 3.104(a). Previous determinations, which are final and binding, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. See 38 C.F.R. § 3.105(a). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in 38 C.F.R. § 3.105. See 38 C.F.R. § 3.104(a). A claim of CUE is a collateral attack on a final decision by a VA Regional Office or the Board. Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002) (en banc), cert. denied, 123 S. Ct. 2574 (2003); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999). Pursuant to 38 U.S.C. § 5109A(a), an RO decision is subject to revision on the grounds of CUE. A decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of "error." Specifically, It is a kind of error, of fact or of law, that when called to the attention of later reviewers compels a conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The Court propounded a three-pronged test to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was 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, 3 Vet. App. at 313-14). The mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The error must be one, which would have manifestly changed the outcome at the time that it was made and must be based on the record and the 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). VA is considered to have constructive notice of medical records in VA's possession. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Dunn v. West, 11 Vet. App. 462, 466 (1998) (Vet Centers are considered VA facilities for the purposes of the duty to assist in obtaining records, specifically citing Bell). Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium); aff'd sub nom., Andre v. Principi, 201 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than mere disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). Broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious. See Fugo, 6 Vet. App. at 44; see also Russell, 3 Vet. App. at 313-14. Furthermore, any breach by VA of its duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete record rather than an incorrect one. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Crippen, 9 Vet. App. at 424; Caffrey, supra. At the time of the September 2003 rating decision, in general, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV)]; a link, established by medical evidence, between the Veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2002). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(2). If, however, the Veteran did not serve in combat, or if the claimed stressor is not related to combat or the fear of hostile military activity, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony alone cannot establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Furthermore, an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). Initially, the Board notes that the Veteran avers that she is entitled to retroactive payment back to when she filed her initial claim in 1993 and that there was CUE in the September 1993 rating decision to deny her service connection for PTSD. The Board notes that the Veteran's February 1993 claim for compensation benefits did not include a claim for any psychiatric disorder at that time. The Veteran claimed 12 specific physical ailments; none of those specifically claimed 12 items were related to depression, PTSD or any other psychiatric disorder. As no benefit was specifically noted, the Board cannot find a claim for benefits was initiated at that time. See 38 C.F.R. § 3.155. Moreover, the Board notes that no claim for service connection for any psychiatric disorder was adjudicated in the September 1993 rating decision. As the there was no adjudication of a claim for benefits for a psychiatric disorder at that time, there can be no final decision and 38 C.F.R. § 3.105(a) cannot be applied to give an earlier effective date back to the date of the Veteran's 1993 claim. In short, the Veteran never filed a written claim for compensation benefits in regards to any psychiatric disorder in 1993. The Board notes that the Veteran stated in her April 2011 hearing that she had depression since 1993 and was receiving treatment for that psychiatric disorder at that time. Insofar as such is meant to imply that because she was receiving treatment for depression that VA should have construed a claim, the Board finds that such is not the case. A VA examination report will be accepted as an informal claim for benefits once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b) and (b)(1) (2003-2010). The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized, but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). Similarly, the date of receipt of evidence from a private physician or layman will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. Moreover, when authenticated evidence from state and other institutions is submitted by or on behalf of the Veteran and entitlement is shown, date of receipt by the VA of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. 38 C.F.R. § 3.157. A report of examination or hospitalization which meets the requirements of 38 C.F.R. § 3.157 will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. Such evidence will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of 38 C.F.R. § 3.114 with respect to action on VA initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of one year prior to the date of receipt of the report. Moreover, the VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151 (2010). Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. 3.155 (2010). "Application" is not defined in the statute. However, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2010); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) define "claim," informal as well as formal, as a "communication in writing." Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to "an informal claim," it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing." The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." Applicable statutory and regulatory provisions require VA look to all communications from the Veteran which may be interpreted as applications or claims-formal and informal-for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196 (1992). However, "[t]he mere presence of the medical evidence [in the record] does not establish an intent on the part of the veteran to seek" service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998). The mere receipt of medical records cannot be construed as an informal claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999); see also Criswell v. Nicholson, 20 Vet. App. 501 (2006) (the mere existence of medical records generally cannot be construed as an informal claim for VA benefits, but rather there must be some intent by the claimant to apply for benefits). In this case, the Veteran appears to claim that merely because she was treated for depression in 1993 that is when her effective date should be assigned. However, regardless of whether there is documentation in 1993 of any treatment for depression, such records cannot be used as an informal claim for service connection because the mere presence of those treatment records does not show an intent on the part of the Veteran to apply for VA compensation benefits. See Brannon, 12 Vet. App. at 35 (the mere presence of medical records does not connote an intent to apply for VA benefits). Therefore, those records cannot be construed as an informal claim(s) so as to serve as a basis for the award of an earlier effective date in this case. As stated above, the Veteran did not demonstrate an intent to apply for benefits for a psychiatric disorder in 1993. See 38 C.F.R. §§ 3.151, 3.155, 3.157. Instead, the Board finds that the first claim, either formal or informal, for any compensation benefits for any psychiatric disorder was on September 11, 2002, when she filed for service connection for depression and PTSD. See 38 C.F.R. §§ 3.151, 3.155. Such was denied in a September 2003 rating decision, and the Veteran was notified of that decision in a September 2003 letter. The Board finds that that September 2003 is final. Specifically, the Board notes that the Veteran did not submit a notice of disagreement with that September 2003 rating decision within one year of notification of that decision in September 2003. A notice of disagreement is a written communication from a claimant or her representative expressing dissatisfaction or disagreement with the adjudicative decision of the agency of original jurisdiction (AOJ, which is the RO in this case) and a desire to contest the result. 38 C.F.R. § 20.201 (2010) (emphasis added). No special wording is required, but the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with the determination and a desire for appellate review. Id. The U.S. Court of Appeals for Veterans Claims (Court) has described the notice of disagreement as the least burdensome of procedural requirements in veterans benefits law. See Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010). While the Board is cognizant that the VA received congressional correspondence in September 2003 and October 2003 from Ms. R.C. on behalf of the Veteran, the Board notes that such September 2003 correspondence was received before the September 2003 rating decision was promulgated. Therefore, such cannot be a notice of disagreement. Moreover, that correspondence specifically noted that it was a status inquiry as to when the Veteran's claims were going to be adjudicated. The Board focuses, instead, on the October 2003 correspondence from Ms. R.C. A liberal reading of such correspondence, as required by VA, could be construed as a disagreement with the September 2003 rating decision, since it specifically questions VA's use of an internet search and suggests that VA failed to acquire an "after action report." See Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (VA has an obligation to liberally construe the pleadings of a claimant to discern all issues raised in the record); Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006) (VA is required to construe all of a pro se Veteran's pleadings sympathetically); Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007) However, while such a communication is clearly written and could be construed as disagreement with the September 2003 rating decision, the Board notes that such written communication is not from the Veteran or her representative. Specifically, the Veteran contacted her congressman's office and a congressional staffer-Ms. R.C.-contacted VA in order to get a clarification of why the RO did what it did. The Board notes that there is no statute or regulation which makes a person's congressman a Veteran's representative without the filing of proper paperwork. In this case, the Veteran's representative of record is African American PTSD Association, not her congressman. The Board further notes that the current VA Form 21-22 on file notes that the African American PTSD Association has been the Veteran's representative since September 2002, and thus was clearly the Veteran's authorized representative at the time of the October 2003 correspondence from Ms. R.C. Therefore, regardless of whether the congressional staffer could be construed as a representative for a pro se Veteran filing a claim for benefits, the Veteran was already represented by an authorized representative in September 2003 when her claim was denied. Moreover, the Board will not construe the October 2003 congressional inquiry as a formal change in representation from the authorized representative, African American PTSD Association, to the congressman, as it does not appear that such was the intent by either the Veteran or the congressional staffer to enter into such a relationship in this case. In fact, African American PTSD Association is still-today-the Veteran's authorized representation which specifically contradicts any such intent by the Veteran to have her congressman become her authorized representative. Thus, while the October 2003 correspondence was written and could be construed as disagreement with the September 2003 rating decision, such was not a written communication from the Veteran or her representative and therefore cannot be deemed a notice of disagreement for purposes of initiating the appellate process defined by the law. See 38 C.F.R. § 20.201. As VA did not receive a written communication from either the Veteran or her authorized representative within one year of the September 2003 rating decision, that rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2010). Therefore, new and material evidence is required to reopen the claim, regardless of how the RO characterized the issue. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence of record at the time of the September 2003 rating decision clearly demonstrated that the Veteran had been diagnosed with PTSD in a June 2003 VA treatment note and that such PTSD was related to a bombing incident during military service, provided that such could be administratively corroborated. Thus, the Board concedes those two elements of service connection; instead, the Board focuses on the verification of the Veteran's claimed in-service stressor based on the evidence of record in September 2003. The Board noted that at the time of the September 2003 rating decision the Veteran's service medical and personnel records did not corroborate the Veteran's claimed bombing incident during service. The Board notes that the Veteran and her representative admit that specifically during both the May 2009 and April 2011 hearings. Moreover, the internet articles from VA's search demonstrate terrorist bombings in August 1985, November 1985 and April 1986-all with injuries and fatalities involved. The Board notes that none of these incidents match the description of the Veteran's claimed stressor which occurred in "Friesen, Germany in or about January 1986." Accordingly, the Board finds that there is no evidence of record on which reasonable minds could state that clearly and unmistakably VA erred in finding that the evidence of record failed to corroborate the Veteran's claimed in-service stressor. See Fugo, supra. On appeal, the Veteran has specifically averred that VA failed to fulfill its duty to assist her in 2003, by failing to get an after action report or other military records, including the Stars and Stripes newspaper articles which she provided. The Board finds that such broad-brush allegations cannot be the basis of a finding for CUE as they do not meet the requirements of specificity required under Fugo. Specifically, the Board notes that the failure of VA to find all records identified by the Veteran merely results in an incomplete, not incorrect record. Moreover, in this case, the Veteran gave the wrong information to VA regarding the date and location of the claimed stressor incident. The Veteran explicitly admitted that she was mistaken about the actual location and date of occurrence until she was corrected by her fellow servicemember-who then wrote a corroborating statement- in January 2005. As to the Veteran's arguments on appeal that her mistaken information about the date and location of the incident notwithstanding, VA failed to get any unit records, such as after action reports, which would have corroborated the incident, such arguments amount to nothing more than allegations of a duty to assist violation. Thus, VA's failure to get any of the Veteran's unit reports or any of the evidence that the Veteran eventually submitted cannot be the basis of a claim for CUE in this case. See Tetro, supra; Crippen, supra. VA has a duty to assist; it does not have a duty to find every absolute piece of information that may potentially corroborate the Veteran's claim, particularly if the Veteran provided VA with incorrect information. Finally, insofar as the Veteran claims that she should be awarded an earlier effective date because such records that she submitted in 2006 were "government records," the Board does not find that the RO failed to apply 38 C.F.R. § 3.156(c) in this case. At any time after VA issues a decision on a claim, if VA receives or associates official service department records that existed and had not been part of the claims file at the time VA considered the initial claim, VA will reconsider the claim without regard to the need of new and material evidence under 38 C.F.R. § 3.156(a). 38 C.F.R. § 3.156(c)(1) (emphasis added). Such records include, but are not limited to: service records that are related to a claimed in-service event, injury or disease, regardless of whether they mention the Veteran by name, as long as they meet the other requirements of paragraph (c); additional service records forwarded by the Department of Defense or the service department of VA any time after VA's original request for service records; and, declassified military records which could not have been obtained because they were classified at the time of the initial decision on the claim. See 38 C.F.R. § 3.156(c)(1)(i)-(iii). In this case, the Veteran specifically argued that an earlier effective date should be granted on the basis of her submission of "the Stars and Stripes newspaper article and other government resources." The Board takes judicial notice that the Stars and Stripes newspaper is operated by the Department of Defense, though is editorially separate from the Department of Defense and enjoys First Amendment protection by congressional oversight. See http://www.stripes.com/ customer-service/about-us (last visited, May 26, 2011). The Board also notes that Stars and Stripes is "among the many Department of Defense authorized news outlets." See Id. While Stars and Stripes is operated by the Department of Defense, the Board finds that such is not an official service department record. Such is an authorized news outlet provided for the Armed Forces, but is not an official service document that is created like a Form DD-214 or service medical record is created. Nor are newspaper articles published by Stars and Stripes and distributed for the convenience of military personnel by the Department of Defense official accounts of events such as after action reports, morning reports or deck logs are. Moreover, Stars and Stripes does not meet the definition of the type of records noted in 38 C.F.R. § 3.156(c)(1)(i)-(iii) as examples of the types of records which would be considered official service department records that would be used to preempt the application of 38 C.F.R. § 3.156(a). Additionally, the Board notes that it is unclear what other "government resources" the Veteran is referring to other than her submission of a lay statement from her fellow servicemember. Such is a post-service statement and was not a line-of-duty report. Accordingly, such is not an official service department record of the described event, though such corroborated the Veteran's account of the claimed incident. Consequently, the Board finds that VA was correct in requiring new and material evidence to reopen the final September 2003 rating decision. As such decision was final and required new and material evidence, such a grant of benefits stemming from reopening that claim is limited to the initial filing of the Veteran's claim to reopen. In this case, such date is November 1, 2006-the date on which she filed to reopen her PTSD claim. Accordingly, the Board finds that the assignment of an effective date prior to November 1, 2006, for the award of service connection for PTSD must be denied. See 38 C.F.R. § 3.400(q)(1)(ii), (r). In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court held that in a case where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law. However, in Simmons v. Principi, 17 Vet. App. 104, 115 (2003), the Court held that where the basis for the Board's decision denying a claim of CUE in a rating decision is the claimant's failure to plead CUE with the specificity required by Fugo, the remedy is dismissal without prejudice, and not denial. Accordingly, as to the appellant's arguments for CUE in prior rating decisions, such amount to no more than a dispute over how the RO weighed the evidence and a breach of VA's duty to assist. As such, her arguments do not meet the specificity required of CUE claimants; the Board will dismiss the appellant's claim without prejudice. Id; see also Hillyard v. Shinseki, No. 08-1733, WL 1120096 at *9 (Vet. App. Mar. 29, 2011) (holding that there is a difference between the Board and RO decisions with respect to CUE claims, particularly in light of Disabled American Veterans (DAV) v. Gober, 234 F.3d 682, 699 (Fed. Cir. 2000) and 38 C.F.R. § 20.1409(c) which note that Board decisions of CUE cannot be re-challenged and are to dismissed with prejudice on subsequent attempts, while RO decisions are not subject to similar treatment). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The claims of CUE in the prior rating decisions in September 1993 and September 2003, denying entitlement to service connection for PTSD, are dismissed without prejudice. An effective date prior to November 1, 2006, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs