Citation Nr: 1129293 Decision Date: 08/09/11 Archive Date: 08/16/11 DOCKET NO. 09-36 224 ) DATE ) ) THE ISSUE Whether an October 8, 2008, decision of the Board of Veterans' Appeals (Board) that denied the Veteran's claim for an effective date earlier than January 15, 2002, for the grant of service connection for posttraumatic stress disorder (PTSD) should be revised or reversed on the grounds of clear and unmistakable error (CUE). ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from October 1985 to July 1988. This case comes before the Board as an original action on the Veteran's motion alleging CUE in an October 8, 2008, Board decision that denied the Veteran's claim for an effective date earlier than January 15, 2002, for the grant of service connection for PTSD. The Board observes that the motion submitted by the Veteran in August 2009 can arguably be construed as a claim of CUE in the RO's May 1998 rating decision that denied service connection for PTSD. In his August 2009 submission, the Veteran specifically asserts there was error in the denial of his claim as he had a diagnosis of PTSD as of May 20, 1998 (the date of the rating decision denying service connection for PTSD). Broadly interpreted, this allegation essentially centers on claimed error in the RO's denial of service connection of PTSD at that time. However, the Board cannot assume jurisdiction of this particular assertion of error in the prior rating decision without prior RO adjudication of the CUE claim. In this vein, the RO has not adjudicated the issue of CUE in this particular rating decision. Therefore, the issue of CUE in the RO's May 1998 rating decision appears to have been raised and is therefore referred to the RO for proper adjudication. FINDINGS OF FACT 1. The allegation of CUE is based on the RO's findings in its final May 1998 rating decision, as opposed to the Board's legal findings in its July 2008 Board decision. 2. The Veteran has failed to advance a valid claim of CUE of fact or law in the Board's October 2008 decision. Thus, the specific pleading requirements of 38 C.F.R. § 20.1404(b) have not been met here. CONCLUSION OF LAW Because the pleading requirements for a motion for revision of a decision based on CUE have not been met, the motion must be dismissed without prejudice to refilling. 38 C.F.R. § 20.1404(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter with respect to whether the VA has met the notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA), the VCAA and its implementing regulations do not expressly indicate whether such provisions apply to motions alleging CUE in prior final decisions of the Board. However, the United States Court of Appeals for Veterans Claims (Court) has held that, "as a matter of law, the VCAA is inapplicable to CUE claims." Sorakubo v. Principi, 16 Vet. App. 120, 122 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the duties specified in the VCAA are not applicable to allegations of CUE in a prior Board decision). Thus, given the nature of a motion to revise an earlier decision based upon CUE, no notification as to additional evidentiary development of the record is at issue, since the evaluation of such a motion is based upon the record as it was constituted at the time of the decision as to which revision is sought. Motion for Revision of Prior Board Decision A decision by the Board is subject to revision on the grounds of clear and unmistakable error (CUE). If evidence establishes the error, a prior decision shall be reversed or revised. 38 U.S.C.A. § 7111 (2010). The moving party seeks to reverse or revise, on the grounds of CUE, an October 2008 Board decision that denied entitlement to earlier effective date for the grant of service connection for PTSD. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to 38 C.F.R. §§ 20.1400-20.1411. The motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. 38 C.F.R. § 20.1404(b) (2010). The implementing regulation defines CUE as a very specific and rare 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 20.1403(a) (2010). A determination of CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b)(1) (2010). Examples of situations that are not CUE are: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision, (2) the Secretary's failure to fulfill the duty to assist, and (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d) (2010). CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e) (2010). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. 38 C.F.R. § 20.1403(c) (2010). The "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b) does not apply to a Board decision on a motion to revise a Board decision due to CUE. 38 C.F.R. § 20.1411(a) (2010). In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that once a decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. The Veteran must timely appeal the VA decision that assigned the effective date in question. If an untimely freestanding claim for an early effective date is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300. In this case, in a May 1998 rating decision, the RO denied service connection for PTSD. The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). In the current case, the Veteran did not appeal the May 1998 denial; and it became final. See 38 C.F.R. § 3.104(a) (rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority). Thereafter, on January 15, 2002, the Veteran filed a petition to reopen the unappealed May 1998 rating decision denying service connection for PTSD. In a July 2003 rating decision, the RO granted service connection for PTSD and assigned a retroactive date of January 15, 2002, for the award, the date of receipt of the Veteran's petition to reopen his claim for PTSD. While the Veteran disagreed with the evaluation of PTSD, he did not appeal the effective date assigned for the grant of service connection for PTSD. Accordingly, the decision regarding the assignment of the January 2002 effective date is final. It was not until October 28, 2004, that the RO received the Veteran's free standing claim for an effective date earlier than January 15, 2002, for the grant of service connection for PTSD. Because the Veteran did not file a timely notice of disagreement with the effective date assigned in the July 2003 rating decision, the October 2008 Board decision dismissed the Veteran's earlier effective date claim on the basis that the Veteran had not timely appealed the original July 2003 rating decision that assigned the effective date, per the Court's holding in Rudd. In an August 2009 correspondence, the Veteran argues that there was CUE in the Board's October 2008 decision. He specifically indicates that he had a diagnosis of PTSD as of May 20, 1998. The Veteran notes he was granted PTSD as a non-service connected disability but granted service connection on the same basis. Stating that the same car accident in which he injured his back during service in Fort Bragg in 1986 caused his multiple problems, including physical and mental disabilities, the Veteran reiterates that he was diagnosed with PTSD by a VA doctor in May 1998. Based on review of the record, the Board finds that the October 2008 Board decision correctly dismissed the Veteran's freestanding claim for an earlier effective date per the holding of the Rudd case. There was no timely notice of disagreement filed for the effective date issued after the RO's final July 2003 rating decision. See 38 C.F.R. § 20.302(a) (2010). In other words, the Board did not have jurisdiction over the effective date issue that had been appealed. Accordingly, per the Court's holding in Rudd, the freestanding effective date claim was properly dismissed. Review of the August 2009 CUE motion, reveals that the Veteran did not specifically plead how the Board's reliance on the Rudd case, which was the legal basis of its decision, amounted to CUE. Rather, in the August 2009 CUE motion, the allegation of CUE is essentially based on the premise that the Veteran was diagnosed with PTSD as of the May 1998 rating decision thereby warranting the grant of an earlier effective date. The Veteran's argument is therefore based on the RO's findings in its final May 1998 rating decision, as opposed to the Board's legal findings in its October 2008 Board decision. As discussed above, the Board has referred the issues of CUE in the RO's May 1998 rating decision to the RO for proper adjudication. Regardless, the specific requirements of 38 C.F.R. § 20.1404(b) have not been met here as to an allegation of CUE in the Board's October 2008 decision. Because the moving party's motion fails to comply with the requirements set forth in 38 C.F.R. § 20.1404(b) (2010), the motion is dismissed without prejudice. See also Simmons v. Principi, 17 Vet. App. 104, 114 (2003). ORDER The motion for revision of the October 2008 Board decision is dismissed without prejudice to refilling. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs