Citation Nr: 1235247 Decision Date: 10/11/12 Archive Date: 10/17/12 DOCKET NO. 08-02 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether the June 1996 RO decision that denied service connection for post-traumatic stress disorder was the product of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active service from January 1976 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 RO rating decision that, in pertinent part, denied a claim that there was CUE in a June 1996 RO decision that denied service connection for PTSD. FINDINGS OF FACT 1. In a June 1996 decision, the RO denied service connection for PTSD. The Veteran was notified of that decision and did not file an appeal. 2. The June 1996 RO decision contained error to the extent that it did not provide sufficient reasons and basis for its stressor determination under the provisions of 38 U.S.C.A. § 5104(b) (West 1991) and Veterans Benefits Administration (VBA) M21-1 Adjudication Manual M21-1, Part III, Paragraph 5.14c (Feb. 20, 1996) (Change 49); however, the error was not the sort which, had it not been made, would have manifestly changed the outcome at the time it was made." 3. The RO did not commit outcome determinative CUE as there was a plausible basis for its factual determination that the Veteran did not present credible supporting evidence of a PTSD stressor. CONCLUSION OF LAW The June 1996, RO rating decision was not the product of CUE. 38 U.S.C.A. § 5104(b) (West 1991); 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. § 3.304(f) (1995); 38 C.F.R. §§ 3.104, 3.105(a) (2011); M21-1, Part III, Paragraph 5.14c (Feb. 20, 1996) (Change 49). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters: Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and inform the Veteran as to what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Considering the nature of this case, which involves a determination of whether CUE was present in a prior final rating decision, the Board holds that the provisions of the VCAA are inapplicable to the instant case. The Board believes this conclusion to be consistent with the holding of the United States Court of Appeals for Veterans Claims (CAVC or Court) in Livesay v. Principi, 15 Vet. App. 165 (2001) which held that a litigant alleging CUE is not pursuing a claim for benefits pursuant to part II or III, but rather is collaterally attacking a final decision, pursuant to section 5109A of part IV or section 7111 of part V of title 38. Therefore, the Board will proceed with consideration of the Veteran's appeal. Analysis The Board has reviewed all the evidence in the Veteran's claims file, which includes: her multiple contentions; service treatment and personnel records; post-service VA and private medical records; and VA examination reports. Although the Board has 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 Board's 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). A decision by the Secretary under chapter 38 is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C.A. § 5109A. The Board notes that under 38 C.F.R. §§ 3.104(a) and 3.105(a), taken together, a rating action is final and binding in the absence 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). Under applicable laws and regulations, RO decisions that are final and binding will be accepted as correct in the absence of CUE. See 38 C.F.R. § 3.105(a). The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and evaluated) or whether the statutory or regulatory provisions extant at that time were incorrectly applied. Second, 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." Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). According to the Court, CUE is a very specific and rare kind of error. "It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 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 at 313). The Court has defined CUE as administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). However, the mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The Court has also held that the failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). The essence of a claim of CUE is that it is a collateral attack on an otherwise final rating decision by a VA Regional Office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity which attaches to that final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. See Fugo at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). See also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion before the CAVC in a claim of CUE). The Veteran contends that the June 1996 RO decision that denied service connection for PTSD, was the product of CUE on several bases. In pertinent part, it is argued that the evidence before the RO in June 1996 contained all elements to establish the Veteran's entitlement to service connection for PTSD - 1) a clear diagnosis of PTSD, 2) sufficient "marker" evidence of record to corroborate a sexual assault in service, and 3) a VA medical opinion which linked her PTSD diagnosis to the inservice sexual assault. The Veteran primarily contends that the RO failed to apply or misapplied the substantive provisions of VA's Manual M21-1 then in effect which proscribed special rules for identifying alternate forms of evidence for verifying a sexual assault stressor. Additionally, she contends that the RO factually erred in the June 1996 decision because her PTSD claim was granted in 2006 based upon the same exact evidence that was before the RO in 1996. Moreover, the Veteran peripherally alleges that the RO failed in its duty to assist her in the development of her claim. Historically, the Veteran filed an original application for entitlement to service connection for PTSD in January 1996. Under the law extant in June 1996, establishing service connection for PTSD required (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f) (1995). VA regulations did not contain specific evidentiary requirements pertaining to personal assault claims. In general, a noncombat-related stressor could not, as a matter of law, be established by the claimant's testimony alone but had to be corroborated by credible supporting evidence. Doran v. Brown, 6 Vet. App. 283, 289 (1994); Dizoglio v. Brown, 9 Vet. App. 163 (1996). However, the M21-1 Adjudication Manual had provisions in effect in June 1996 which included a section entitled "PTSD Claims Based on Personal Assault" which, in pertinent part, stated as follows: (1) Veteran's claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. Although most often these incidents involve female veterans, male veterans may also be involved. Care must be taken to tailor development for a male or female veteran. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. It is possible for someone to develop symptoms of PTSD as a result of this type of stressful experience... (2) Because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Therefore, alternative evidence must be sought. (3) To service connect PTSD, there must be credible evidence to support the veteran's assertion that the stressful event occurred. This does not mean that the evidence actually proves that the incident occurred, but rather that the preponderance of the evidence supports the conclusion that it occurred. (4) Review the claim and all attached documents. Do initial development based on this information to include all available service department records such as medical and clinical, the service record jacket including complete military personnel records. (a) Service records not normally requested may be needed to develop this type of claim. Responses to the development letter attachment shown in Exhibit A.4 must be carefully examined. Additional development in addition to service records previously requested may be needed based on the claimant's response. (b) Other service records which may be needed include any reports from the military police, shore patrol, provost marshall's office, or other military law enforcement... (5) The service record may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. Therefore, development to alternative sources for information is critical. Alternative sources that may provide credible evidence of the in-service stressor include: (a) Medical records from private (civilian) physicians or caregivers who may have treated the veteran either immediately following the incident or sometime later; (b) Civilian police reports; (c) Reports from crisis intervention centers such as rape crisis centers or centers for domestic abuse; (d) Testimonial statements from confidants such as family members, roommates, fellow service members, or clergy; (e) Copies of personal diaries or journals. (6) Identifying possible sources of alternative evidence will require that you ask the veteran for information concerning the incident. This should be done as compassionately as possible in order to avoid further traumatization. The PTSD stressor development letter used by regional offices to solicit details concerning the in-service stressful incident may be inappropriate for this type of PTSD claim. Therefore, if the stressful incident is a personal assault, use Exhibit A.3 or a letter developed locally for this type of claim. ... (8) Rating board personnel must carefully evaluate all the evidence. If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but are not limited to): (a) Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) Sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; (c) Lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; (d) Changes in performance or performance evaluations; (e) Lay statements describing episodes of depression, panic attacks or anxiety but no identifiable reason for the episodes; (f) Increased or decreased use of prescription medications; (g) Increased use of over-the-counter medications; (h) Evidence of substance abuse such as alcohol or drugs; (i) Increased disregard for military or civilian authority; (j) Obsessive behavior such as overeating or undereating; (l) Increased interest in tests for HIV or sexually transmitted diseases; (m) Unexplained economic or social behavior changes; (n) Treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; (o) Breakup of a primary relationship. (9) Rating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. Manual M21-1, Part III, Paragraph 5.14c (Feb. 20, 1996) (Change 49). In this context, the Veteran's service personnel records (SPRs) reflect that she had active service from January 1976 to April 1977. Her Department of Defense Form (DD) 214 showed that she received an honorable discharge in April 1977. She had eight months and six days of foreign and/or sea service, which consisted of a tour of duty in Germany from August 1976 to April 1977. The Veteran's occupational specialty was listed as a truck vehicle mechanic. There was no record of demotions or disciplinary actions. The Veteran's service treatment records (STRs) include her December 1975 enlistment examination which was negative for lay or medical evidence of psychiatric abnormality or complaints. She weighed 141 pounds. In pertinent part, she was treated for common cold with gastrointestinal symptoms in May 1976. In April and May 1976, she was also treated for recurrent vaginitis leading to urethritis. In June 1976, she was treated for an upper respiratory infection (URI) manifested by a productive cough and chest pain with Tedral. She was also treated for gastroenteritis with tension headaches. On June 25, 1976, her prescription of Tedral was discontinued due to her complaint that the medication made her nervous. As indicated above, the Veteran began her tour of duty in Germany in August 1976. On November 3, 1976, she sought treatment for vomiting and diarrhea of 4 hours duration. On November 8, 1976, the Veteran attended a dental appointment for bite-wing radiographs (BWG). It was noted that the Veteran left before BWXs could be taken. On November 17, 1976, the Veteran presented with four separate complaints (1) being unable to sleep at night for approximately 3 weeks, (2) drainage in her throat, (3) diarrhea and (4) nervousness. The clinical noted elaborated as follows: Pt states as above - Restlessness x 3 weeks - Pt states sleepless nights and nervous poss due to constant pressures of classes at night. Diarrhea started last pm after lunch last pm. No symptoms of nausea or vomiting. Physical examination was significant for findings of a red and inflamed throat with slightly swollen and enlarged tonsils. Her left ear canal and tympanic membrane were also red. She was prescribed Dimetapp and Valium. The Veteran was next seen in the infirmary on November 29, 1976 reporting diarrhea, vomiting, nausea and lack of appetite. Physical examination was significant for sinus congestion, a red left tympanic membrane, inflamed and slightly swollen tonsils, chest tenderness, back ache, and some tenderness of the right side of glands. She was referred for an evaluation of possible flu or virus. She was later treated with Kaopectate and fluids. A December 6, 1976 treatment record reported that the Veteran had mononucleosis. She was ordered to quarters for 72 hours. A December 7, 1976 Routing and Transmittal Sheet indicated that the Veteran should be referred to Dr. H. if she was to be given any more quarters. Another undated Routing and Transmittal Sheet indicated that the Veteran should be referred to Dr. H. for sick call. On December 27, 1976, the Veteran presented with complaint of back pain, sore throat, headache, nausea, diarrhea and congestion. It was noted that she had taken a Valium at bedtime (HS). She was prescribed Sudafed for nasal congestion and Benadryl at night for sleep. On the next day, the Veteran was diagnosed with pharyngitis. On January 3, 1977, the Veteran was seen at the mental health (MH) clinic per the request of "CDAAC" due to anxiety and sleeping problems. At that time, she was instructed to consult with Dr. H. and return for a follow up (f/u) appointment on January 7, 1977. A diagnosis was not provided. A January 4, 1977 entry indicated that the Veteran failed to keep her appointment with Dr. H. On January 13, 1977, the Veteran had a follow-up appointment at the mental health clinic. The Veteran refused to cooperate with the specialist and wished to speak to Dr. H. regarding his assistance in getting her a discharge from the military. On January 18, 1977, the Veteran presented with complaint of sudden onset of lower back pain while eating breakfast. She was given an assessment of muscle sprain. In February 1977, the Veteran sought treatment for pulled muscles in her left upper thigh and mid-back which she reported had happened in the past. It was noted that she seemed to have pulled her left rectus spini again. On February 14, 1977, the Veteran presented with complaint of left neck pain, right ear pain, left lower back pain and mild nasal congestion. Examination found no pathology except for mild gastroenteritis (GE). She was prescribed castor oil. On March 22, 1977, the Veteran underwent surgical removal of a malposed tooth #17. She experienced complications including dry socket. On her March 1977 separation examination, the Veteran endorsed a history of multiple problems including swollen or painful joints, frequent or severe headaches, ear trouble, hearing loss of the right ear, shortness of breath, pain or pressure in chest, palpitation or pounding heart, cramps in legs, frequent indigestion, adverse reaction to penicillin, frequent or painful urination, recent gain or loss of weight, bone, joint or other deformity, recurrent back pain, trick or locked knee, flat feet, car, train, sea or air sickness, frequent trouble sleeping, depression or excessive worry, nervous trouble of any sort, and a change in her menstrual pattern. She further reported a history of attempted suicide. In her handwriting, the Veteran wrote "lower Back pains - nausea, (illegible), nerves." The examiner commented that the Veteran reported a history of spinal curvature which was not shown clinically. The examiner further wrote "[a]lso note that pt denied any sx on entering service but now with multiple yes answers to various sx." The March 1977 separation examination report included a notation that the Veteran's psychiatric evaluation was normal. She weighed 150 pounds. On her initial VA Compensation and Pension (C&P) examination in November 1977, the Veteran reported a history of low back pain and discomfort which began in service. She also noted (written sideways on the right hand side of the examination report cover sheet) as follows: "& periodic loss of bladder control - muscle contractions - nervous tension - hard headaches - coming more frequent." Examination did not specifically evaluate her psychiatric status. In January 1996, the Veteran filed service connection claims for PTSD, right ear hearing loss and "jaw problems (TMJ) 1976." In connection with her original PTSD claim, the Veteran submitted private medical records which included a December 1995 report from the Veteran that she was involved in a high stress occupation involving issues of abuse, physical threats and gang activities. She was advised to decrease her stress level. A January 1996 treatment record included her report of being raped by a woman and witnessing a suicide in the military. She had also received death threats at work. She had physical issues which included upper respiratory distress, gastrointestinal (GI) distress and headaches. She had a long history of unemployment, and had issues with authority figures throughout her career. The examiner provided an impression of adjustment disorder with mixed depression and anxiety. In March 1996, the Veteran underwent VA C&P PTSD examination. The RO's February 1996 examination request reflects that the claims folder was to be provided to the examiner. The examination report does not reflect that the claims folder was provided, and there is no reference to STRs. At that time, the Veteran reported intermittent bouts of insomnia and nightmares which she attributed to severe traumatic events which occurred in service. In particular, the Veteran reported witnessing suicides among military people in Germany, and having been raped by a sergeant in the military. She reported that, as a consequence of those events, she had been unable to hold a long-term job, became socially withdrawn, had rage episodes and considered suicide. The Veteran also reported receiving several death threats at work as she dealt with gang members. Following mental status examination, the VA examiner provided diagnoses of mild PTSD and alcohol dependence in remission. The examiner also provided the following summary: ASSESSMENT: This is a 42-year old Caucasian woman, who appears to present with signs and symptoms compatible with mild to moderate form of post traumatic stress disorder, as evidenced by severe insomnia, nightmares, and social isolation. This is apparently related to severe traumatic experiences in the military. Even though she has some symptoms of PTSD she has psychological component that maybe aggravating this patient's symptoms as well as precluding this patient from getting any appropriate treatment. The Veteran also underwent VA dental examination in April 1996. At that time, the Veteran reported an incident during dental treatment in service where a dentist left a mouth prop in her mouth and walked away. She claimed that she could not close her mouth once the prop was removed, and that she had experienced TMJ problems since then. Following examination, the examiner diagnosed subluxation of the left TMJ. It was noted that her PTSD could certainly be contributing to her jaw problems. In April 1996, the Veteran submitted a stressor statement which reported multiple military stressors which she claimed were productive of PTSD as follows: During basic training in February 1976, the Veteran witnessed instructors exercise a female recruit to the point of collapse. During advanced individual training, the Veteran was not allowed leave to attend a funeral of close relatives. She was also falsely accused of being a lesbian, which led to her restriction from socializing with her supportive friends. She also reported that she was forced to go to a dentist to have perfectly good molars removed by forcefully opening her mouth to place a device and then leaving the office for 2.5 hours. She reported that, upon his return, he pulled both teeth and forcefully closed her mouth when she could not close her mouth naturally. She requested a military discharge which was denied. She also recalled being momentarily rendered unconscious when a warning signal had sounded near her ear drum. Between April 1976 and April 1977 when stationed in Germany, the Veteran again had her request for discharge denied. She then reports being forcefully raped by a female sergeant who possessed a black belt in karate and who threatened to kill her if she reported in the incident. She next reported an incident wherein she was ordered to swallow castor oil and not given access to a bathroom. She reports being written up for absent without leave when she went to use a bathroom without permission. At that point, the Veteran indicated seeing lawyers and chaplains on a daily basis. She was prescribed Valium, but then forced to stop using valium cold turkey which led her into a spiral of depression and physical withdrawals. She also reported undergoing psychological evaluation, and having her results intentionally falsified being told she failed the tests miserably when in fact she scored above average. The Veteran also reported several other traumatic events such as witnessing her roommate slash her wrist, having her friend's dead fetus delivered in her hands, seeing many fights including a knife fight, and witnessing an individual commit suicide by jumping to his death from a second story window. She stated that, upon her dismissal, she weighed 160 pounds from anxiety eating, improper digestion capabilities and 2 stomach ulcers. She did not report attempting suicide in service. An RO rating decision dated June 1996 denied the Veteran's original claim of entitlement to service connection for PTSD. As reason therefore, the June 1996 rating decision held as follows: The [V]eteran submitted a statement outlining numerous stressful events suffered during her period of active duty. She witnessed another soldier collapse while running. She was present when another woman attempted suicide, and witnessed the suicide of a man who jumped to his death. She helped deliver a fetus of another woman, and stated a doctor flushed it down the toilet. The [V]eteran also stated she was raped by another women named [DP]. The [V]eteran was told if she reported the incident she would be killed. Although service medical records of November 1976 note complaints of restlessness and nervousness due to pressure, the records are negative for diagnosis or findings of any chronic mental condition. There is no evidence of diagnosis of a psychosis to a compensable degree within the one year presumptive period following discharge. Private medical records of January 1996 note high stress due to the [V]eteran's job as a guidance counselor for 4th and 6th grade students. Mild PTSD was diagnosed at VA exam. Service connection for posttraumatic stress disorder requires medical evidence of a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. The evidence available for review does not establish that a stressful experience sufficient to cause posttraumatic stress disorder actually occurred, and service connection is denied. This decision will be reconsidered upon receipt of more detailed information to allow for verification of military stressful events, especially the sexual assault. The information should show the names of those involved including witnesses, the dates of the incidents, the unit to which assigned at the time, and whether any investigation was done. The RO provided the Veteran notice of this decision, and her appellate rights, by letter dated June 13, 1996. As the Veteran did not submit a notice of disagreement with this decision within one year from the date of notice, or submit new and material evidence within one year from the date of notice to require reconsideration, that claim became final. 38 C.F.R. §§ 3.156(b), 20.302 (1995). In pertinent part, the Veteran filed an application to reopen the claim of entitlement to service connection for PTSD in May 2006. Without submitting any new and material evidence, the RO ordered a VA C&P examination with benefit of review of the claims folder with the following instructions: Veteran is requesting service connection for post traumatic stress disorder due to multiple previously stated stressors including being raped by a woman named [DP]. She previously stated that she would be killed if she reported the incident. Veteran was in the US Army from January 20, 1976 through April 7, 1977. Enlistment examination of December 1975 shows no evidence of any mental health condition or disability. Service medical records document complaints starting in November 1976 of restlessness, nervousness and sleepless nights due to reported pressure of classes at night. In January 1977 she was seen at Mental Health for anxiety and problems sleeping. She was to consult with Dr. [H] and return on January 7, 1977. There are no further medical visits of note. At military discharge examination dated March 17, 1977 she reported on her report of medical history "yes" to nerves, frequent trouble sleeping, depression/or excessive worry, and nervous trouble of sort. The military examiner noted her multiple symptoms at discharge that were not present at enlistment but did not render any diagnosis or reason or evaluation. Regarding claims for post-traumatic stress disorder due to military sexual trauma, current regulations require that to service connect PTSD there must be credible evidence to support the veteran's assertions that the stressful event occurred. This does not mean that the evidence actually proves that the incident occurred, but rather that the preponderance of the evidence supports the conclusion that it occurred. If the claimed in-service stressors are related to sexual assault, "markers" or alternative evidence will be accepted as supporting evidence of the reported stressor. The evidence of record, in this case, shows markers that are sufficient to be accepted as supporting evidence of the reported stressor. The review of service medical records does show sufficient markers for which it can be accepted that a reported stressor did occur. The [V]eteran is shown to have increase[d] symptomatology starting in November 1976, nearly 11 months after enlistment, which did not appear to resolve and continued to the time of military discharge. She was noted to have problems sleeping at night. A VA C&P PTSD examination in September 2006 noted that the RO had accepted the Veteran's claim of being raped by DP during active service. Following mental status examination, the VA examiner stated that the Veteran's reported rape stressor was sufficient to cause PTSD, and that it was more likely than not that the Veteran's PTSD symptoms were related to her sexual assault. By means of a rating decision dated October 2006, the RO granted service connection for PTSD by determining that the Veteran's STRs contained "marker" evidence for the sexual assault in service. In pertinent part, the RO provided the following analysis: Current regulations require that to service connect PTSD there must be credible evidence to support the veteran's assertion that the stressful event occurred. This does not mean that the evidence actually proves that the incident occurred, but rather that the preponderance of the evidence supports the conclusion that it occurred. If claimed in-service stressors are related to sexual assault, "markers" or alternative evidence will be accepted as supporting evidence of the reported stressor. Alternative sources that may provide credible evidence of the in-service stressor include private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, fellow service members or clergy, or copies of personal diaries or journals. Service medical records are carefully reviewed to identify examples of behavior changes or ailment, sudden requests for a change of duty, increased use of leave without an apparent reason, changes in performance, changes in the use of medications, obsessive behavior, pregnancy tests around time of the incident, etc. Rating boards may rely on the preponderance of the evidence to support their conclusions even if the record does not contain direct contemporaneous evidence. You reopened your claim for post-traumatic stress disorder due to sexual trauma on May 21, 2006. Your previously submitted sexual trauma stressor statements were reviewed in context with your service medical records. You stated you were raped by [DP] during service and indicated you would be killed if you reported the rape. These service medical records contain "marker" evidence that serves to support your reported trauma. Specifically, the enlistment examination of December 1975 show[ed] no evidence of any mental health complaints or disability. Starting in November 1976, nearly 11 months after enlistment, there are complaints of restlessness, nervousness, and sleepless nights. In January 1977 you were seen by Mental Health for anxiety and sleeping problems. At military discharge examination in March 1977 you further reported nerve, frequent trouble sleeping, depression or excessive worry and nervous trouble of sort. The military examiner noted your multiple symptoms at discharge that were not present at enlistment but did not render any diagnosis or etiology of such. Review of all your VA claims folder provides no conflicting evidence. Therefore, your reported sexual trauma is considered to be supported by the evidence of record. In the same October 2006 decision, the RO also found no evidence of CUE in the June 1996 RO decision as the Veteran failed to provide any basis for which to allege CUE. Therefore, the RO determined that a valid claim of CUE had not been properly identified. The Board has carefully considered the applicable law and the evidence of record at the time of the June 1996 RO decision, and finds that the Veteran's CUE contentions are without merit. At the time of the decision in June 1996, the Veteran had the burden of establishing a "well-grounded" claim which was defined as a plausible claim which need not be conclusive, but at least satisfied the initial evidentiary burden under 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (quoting section 5107(a)), the Court held that a well grounded a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Where the determinative issue involved either medical etiology or a medical diagnosis, competent medical evidence was required to fulfill the well-grounded-claim requirement of section 5107(a); where the determinative issue did not require medical expertise, lay testimony may suffice by itself. See Lathan v. Brown, 7 Vet. App. 359, 365 (Jan. 26, 1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). The truthfulness of evidence was presumed in determining whether a claim was well grounded. See King v. Brown, 5 Vet. App. 19, 21 (1993). Under the law extant in June 1996, establishing service connection for PTSD required (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f) (1995). When adjudicating the merits of a claim, the claimant held the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a) (West 1991). In its evaluation, the RO considered all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 1991). When there was an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the RO gave the benefit of the doubt to the claimant. Id. With respect to a well-grounded claim, the Veteran met the first evidentiary requirement as the March 1996 examination report contained a clear diagnosis of PTSD. The Veteran also met the second evidentiary requirement that a stressor occurred as her allegations were accepted as true for well-grounded purposes. King, 5 Vet. App. at 21. A March 1996 VA C&P PTSD examination report opined that the Veteran's PTSD symptoms were "apparently related to severe traumatic experiences in the military." The two military "experiences" identified in the examination report were the alleged rape incident and witnessing suicides among military people in Germany. The word apparent is defined as "[t]hat which is obvious, evidence or manifest; what appears, or has been made manifest. That which appears to the eye or mind; open to view; plain; patent..." BLACK'S LAW DICTIONARY WITH PRUNCIATIONS, 6TH Ed., p.96 (1990). Overall, the March 1996 VA C&P PTSD examination report satisfied the well-grounded standard of providing a plausible basis for the claim, particularly when the alleged stressors were presumed true for a well-grounded analysis. Thus, the RO's merits analysis was necessarily limited to adjudicating (1) whether there was any credible supporting evidence that the claimed in-service stressors of the Veteran being raped and/or witnessing suicides in Germany actually occurred, and (2) whether the March 1996 VA C&P report provided a non-speculative causal nexus between current symptomatology and the specific claimed in-service stressor(s). 38 C.F.R. § 3.304(f) (1995). At the time of the June 1996 decision, the RO had a duty to articulate its reasons and bases for denying a claim. 38 U.S.C.A. § 5104(b) (West 1991). A review of the June 1996 decision reflects that the RO reviewed the Veteran's STRs, SPRs, private medical records, a stressor statement from the Veteran, and the results of VA examinations in March and April 1996. The RO summarized in the decision the Veteran's alleged PTSD stressors including her inservice reports of restlessness and nervousness beginning in November 1976, and ultimately concluded that "[t]he evidence available for review does not establish that a stressful experience sufficient to cause posttraumatic stress disorder actually occurred, and service connection is denied." However, the ROs June 1996 rating decision did not explicitly cite the provisions of Manual M21-1, Part III, Paragraph 5.14c, and the body of the decision did not provide any language tending to show that the RO analyzed the case under the principles identified in the section entitled "PTSD Claims Based on Personal Assault." As such, the Board finds that the RO committed error in the June 1996 decision to the extent that it failed to fully apply the provisions of 38 U.S.C.A. § 5104(b) by articulating its findings according to the analysis set forth under M21-1, Part III, Paragraph 5.14c. However, the mere fact that the RO committed a reasons and bases error does not automatically require revision or reversal of the June 1996 decision on the basis of CUE. Rather, the question remains as to whether the RO committed outcome determinative CUE - that is, an error that would manifestly change the outcome of a prior decision. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999). The Veteran and her representative present a strong and sympathetic argument that the award of service connection in October 2006 was based entirely on the same evidence of record before the RO in June 1996, at least as it pertains to her stressor information. It is also argued that changes in the law between 1996 and 2006 for adjudicating personal assault cases were insignificant and could not form the basis for the award of benefits in 2006. Clearly, a strong equitable argument is being presented in this case. However, due to the prior final denial in June 1996, the standard of review concerns whether the RO's failure to properly apply 38 U.S.C.A. § 5104(b) and M21-1, Part III, Paragraph 5.14c. would have manifestly changed the outcome in the June 1996 denial. Another way stated, the question is: Had the RO not made the mistake, was it undebatable that the RO had to reach the factual conclusion that the criteria for establishing service connection for PTSD based upon sexual assault and/or witnessing of suicides had been satisfied? As discussed below, the Board finds that it is NOT undebatable that the RO would have reached a different outcome had it not made a mistake. The Board first notes that it is not argued, and clearly not shown, that the STRs and/or SPRs or any documentary evidence of record in June 1996 contained any direct evidence indicating that the Veteran had been raped in service or witnessed suicides (the two stressors considered by the VA physician in March 1996). For example, the record contained no treatment records discussing these events, there were no reports from police or crisis centers, no copies of personal diaries, and no supporting statements from confidants. Rather, the only direct evidence that these events actually occurred consisted of the testimony of the Veteran herself. However, her testimony alone could not, as a matter of law, satisfy the stressor requirement. Doran, 6 Vet. App. at 289; Dizoglio, 9 Vet. App. 163 (1996). Thus, as conceded in this case, the RO had to look at credible circumstantial evidence, such as "markers" or behavior changes, which could lead to the inference that the events actually occurred. This was necessarily a factual determination. As recognized in M21-1 at that time, the significance of any type of behavior change may require interpretation by a VA neuropsychiatric physician - which belies the fact that inferences are being drawn from circumstantial evidence which may be quasi-medical in nature. Cf. 38 C.F.R. § 3.304(f)(5) (2011) (placing the determination as to whether the available "marker" evidence indicates whether a personal assault occurred in the hands of an appropriate medical or mental health professional). The provisions of Manual M21-1, Part III, Paragraph 5.14c (Feb. 20, 1996) instructed the rating personnel to review the record for behavior changes that occurred at the time of the incident as these may indicate the occurrence of an in-service stressor. The RO had an obligation to follow these substantive provisions. See Cohen v. Brown, 10 Vet. App. 128, 139 (1997); Hayes v. Brown, 5 Vet. App. 60, 67 (1993). One example of a behavior change is a sudden request for an assignment change without other justification. The evidence before the RO in June 1996 reflected that the Veteran actually requested a military discharge on two occasions. The first occasion, as reported in the April 1996 stressor letter, occurred during advanced infantry training which is well before the alleged sexual assault and suicide witnessing events. The Veteran also reports a second request for military discharge being denied upon her transfer to Germany. The chronology, as reported by the Veteran herself, is that the discharge request occurred before the alleged sexual assault and suicide witnessing events. Thus, a reasonable person could conclude that the Veteran's requests for military discharge did not service as potential marker evidence as they occurred prior to the alleged stressor events. Another example of "marker" evidence provided is visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment. On appeal, the Veteran and her representative highlight that the Veteran sought treatment for sleeping problems and anxiety in November 1976, which is a time period when the Veteran was stationed in Germany and the place where the alleged rape occurred. Yet, at that time, the Veteran herself identified the cause of her sleeping problems and anxiety as "poss[ibly] due to constant pressures of classes at night." The record extant in June 1996 did not reflect any evidence impeaching the credibility of this assertion. Thus, a reasonable person could conclude that the Veteran's anxiety and sleeping problems were due to the constant pressure of classes at night as stated by the Veteran. The record also reflects that the Veteran had multiple other visitations while stationed in Germany with increased use of quarters time. She received treatment for vomiting, diarrhea, sore throat, lack of appetite, headache and muscle pain. There symptoms were accompanied by objective medical findings such as nasal congestion as well as inflammation of the tonsils, right glands and left tympanic membrane. She received diagnosis of possible flu/virus, mononucleosis, pharyngitis, left rectus spini pull, and mild gastroenteritis. Thus, the Veteran's many visitations were accompanied by abnormal clinical findings with supporting diagnoses. Thus, a reasonable person could conclude that these visitations were not for unexplained medical reasons which could be indicative of "marker" evidence. Similarly, the rating specialist was instructed to review statements describing episodes of depression, panic attacks or anxiety with no identifiable reason for the episodes. Again, the Veteran described sleeping problems and anxiety but she herself identified the reason as "poss[ibly] due to constant pressures of classes at night." Thus, a reasonable person could conclude that the Veteran's anxiety and sleeping problems had a legitimate reason having nothing to do with the alleged rape and suicide witnessing events. The Board also notes that, beginning in December 1976, the Veteran's command appears to have started placing pressure on the Veteran for her quarters use and requested an evaluation by Dr. H. before any further quarter rest was allowed. This factor could reasonably be interpreted as placing some stresses on the Veteran having nothing to do with the alleged rape and suicide witnessing events. The rating specialist also had to undertake a contextual review of the entire record. Prior to the rape and suicide witnessing attempts which occurred in Germany, the Veteran had already received treatment for gastroenteritis with tension headaches, recurrent vaginitis leading to urethritis and URI manifested by a productive cough and chest pain with Tedral. She had voiced nervousness which she attributed to a prescription of Tedral. Thus, the Veteran was treated for some symptoms in Germany which began before the alleged stressor events in question. The Veteran also reported a weight gain to 160 pounds at the time of separation, which could be indicative of obsessive behavior. Records reflect, however, that the Veteran's assertions were inaccurate as she weighed 150 pounds upon separation. This consisted of only a 9 pound weight gain since service entry. There is no STR entry reflecting an obsessive appetite behavior. As such, this factor alone does not lead to an undebatable conclusion that obsessive behavior due to an inservice stressor had been established. Finally, the rating specialist was required to find "credible" supporting evidence that the claimed in-service stressors occurred, which necessary included a credibility determination of the Veteran's testimony. In April 1996, the Veteran presented a list of at least 14 separate stressors, many of which were not verifiable. However, some of the reported stressors were inconsistent and tended to impeach her overall credibility. For instance, she reported that, during advanced individual training, she was forced to go to a dentist to have perfectly good molars removed by forcefully opening her mouth to place a device. She reported that the dentist left the office for 2.5 hours, and upon his return, he pulled both teeth and forcefully closed her mouth when she could not close her mouth naturally. The Veteran's dental records do not reflect that she had two molars pulled out on any one occasion. The dental records do disclose that, while in Germany on November 8, 1976, she left a dental appointment early before BWXs could be taken. A tooth was not extracted at that time. Additionally, on March 22, 1977, the Veteran underwent surgical removal of tooth #17 only. The dentist description of a malposed tooth is inconsistent with her assertion that a perfectly good molar was extracted. Thus, the Veteran's recollections were not consistent with the documentary evidence in the STRs. Similarly, the Veteran's own description of the BWX incident is internally inconsistent. In her stressor statement, the Veteran alleged that the dentist removed two teeth (which as above is shown to be inconsistent with dental records) and she alleged that he forced her mouth to close when a prop was removed. Yet, during her April 1996 dental examination, the Veteran did not allege teeth removal at this event nor did she allege that the dentist forcefully closed her mouth shut. Thus, the Veteran's own statements are not internally consistent. The Veteran reported another stressor incident wherein she was forced to drink castor oil. Her STRs reflect that, on February 14, 1977, she was prescribed castor oil due to mild gastroenteritis. There is no indication in the SPRs that the Veteran received punishment for a period of AWOL as claimed. Overall, the evidence before the RO in June 1996 contained a sufficient evidentiary basis for the RO to determine that the Veteran's stressor allegations were not corroborated by credible supporting evidence. On the other hand, the rating adjudicator in October 2006 found that this same evidence supported a finding of behavior change and "marker" evidence of the sexual assault. In so finding, the rating specialist indicated that "[r]eview of all your VA claims folder provides no contradicting evidence." Yet, this perfunctory analysis does not take into account the contradictions in the Veteran's statements and the actual documentary record discussed above. In essence, the record contains two different factual interpretations of "marker" evidence by non-medical personnel, and this has resulted in two different legal conclusions based on the same facts. The 2006 rating specialist drew different inferences on the meaning of the STR entries than the 1996 rating specialist. As indicated above, VA recognizes that evaluating the significance of behavior changes may more appropriately be the domain of an appropriately qualified medical specialist. Thus, both rating specialists may have erred to the extent that they did not obtain opinions from a qualified medical specialist. In any event, a review of the evidentiary record reflects that reasonable minds can differ as to the inferences which could be drawn from the "marker" evidence before the RO in June 1996. Clearly, it is not undebatable that the 1996 rating specialist could only come to a conclusion that there was credible supporting evidence of the sexual assault and/or suicide witnessing events. In this respect, the Veteran's report of anxiety and depression had been explained by the Veteran herself as being due to the constant pressures of night classes. Her multiple clinic visitations while stationed in Germany were due to specific ailments supported by objective clinical findings. Some of the Veteran's ailments involving headaches and gastrointestinal distress were treated prior to the alleged rape and suicide witnessing events. The Veteran had been under pressure from her command due to use of quarters leave. The Veteran had requested military discharge on two occasions before the stressor events occurred, and the Veteran's credibility on material facts regarding the dental issue was impeachable as being internally inconsistent and inconsistent with the documentary evidence of record. Overall, the RO's error in failing to articulate the reasons and bases for its stressor determination in June 1996 cannot be said to have resulted in outcome determinative CUE. In this respect, the RO had a sufficient evidentiary basis to determine that the Veteran had not presented credible supporting evidence of an inservice stressor. The October 2006 rating specialist weighed the evidence differently, but a difference in weighing evidence does not constitute a basis for revision or reversal of a final decision. Russell, 3 Vet. App. 310 (1992) (en banc). In this case, it may have been more appropriate for the June 1996 and October 2006 rating specialists to obtain an opinion from a qualified physician regarding the significance of the presumed behavior changes as contemplated by the adjudication manual and, currently, VA regulations. Notably, the M21-1 provisions in effect in June 1996 instructed the rating specialist that he/she "may" need a clinician opinion. Thus, the RO had a discretionary power to determine whether medical opinion was needed, and an overall failure to obtain an opinion cannot, at this time, provide the basis for a CUE claim. Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997). The Board also addresses the adequacy of the March 1996 VA C&P PTSD examination report as supporting a service connection claim on the merits, presuming that either the sexual assault or suicide witnessing stressors could be deemed established on the basis of CUE. Clearly, there is no issue regarding the competency of the examiner to render a diagnosis or opinion, and no issue that PTSD was properly diagnosed. However, that examination report is clearly inadequate for rating purposes as it is not based on a complete factual basis. In this respect, the examiner was not aware of the 13 other military stressors which had been claimed by the Veteran (her statement was submitted after the examination) which may have provided some context for his evaluation. The VA examiner offered no analysis of STR entries which could have provided an alternate explanation for the etiology of the Veteran's complaints. In addition, while the examiner mentioned that the Veteran had received several death threats at work, the examiner did not review the private medical records showing that she was subject to abuse, threats and gang activities as a part of her everyday job which also might have been a factor for providing an alternate explanation for the etiology of the Veteran's complaints. Additionally, the use of the term "apparently" is the only rationale offered for the opinion which prevents any adjudicator from coming to a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a medical opinion must provide sufficient detail and rationale to allow the rating specialist to make a fully informed evaluation of the disability). Unfortunately, another examination opinion was not obtained. A failure to obtain an adequate opinion cannot constitute the basis of a CUE claim as the results of the opinion cannot be known. Hazan, 10 Vet. App. at 522-23. Yet, despite the flaws of the March 1996 VA C&P opinion, it does provide an evidentiary basis to substantiate the claim if outcome determinative CUE is found regarding the RO's June 1996 stressor determination. Thus, the Court would have sufficient basis to grant the claim despite the defectiveness of the opinion. See generally Hanson v. Derwinski, 1 Vet. App. 512, 516 (1991) (reversing a Board decision and awarding service connection in a case where the claimant submitted supportable medical opinion of an etiological relationship that was unrebutted by other medical opinion of record). In sum, the Board finds that the ROs June 1996 rating decision which denied a claim of entitlement to PTSD was not the product of outcome determinative CUE. The Veteran has not met the relevant burden, and, therefore, the June 1996 RO decision did not involve CUE and is final. ORDER As no valid claim for CUE in the rating decision of June 11, 1996, has been presented, the appeal is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs