Citation Nr: 1302833 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-34 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than March 29, 2006, for service connection for posttraumatic stress disorder (PTSD) based upon clear and unmistakable error (CUE) in rating decisions dated January 21, 1988, and August 3, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1965 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that in correspondence dated July 20, 2010, the Veteran's service representative withdrew a request for a decision review officer hearing. Although the Veteran asserted in his July 24, 2010, VA Form 9 that he had been denied due process because of this action, he also indicated that he did not want a Board hearing and requested that his appeal be sent to the Board without a hearing. As the Veteran has waived his right to a hearing in this appeal, the Board finds no merit to his claim of a due process violation. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that under VA law there is no basis for a freestanding earlier effective date claim from matters addressed in a final rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). A review of the record reveals that the Veteran was notified by correspondence dated August 6, 2007, that service connection for PTSD was established from March 29, 2006. He was also notified of his right to appeal that decision. A timely notice of disagreement with the assigned effective date was not received and the August 2006 rating decision as to this matter has become final. The Board also notes that a November 16, 1993, rating decision denied entitlement to service connection for a chronic acquired psychiatric disorder and that a March 2, 1994, rating decision confirmed a denial of entitlement to service connection for bipolar disorder. As the Veteran has raised no specific claim of CUE in these rating decisions and no such claims have been adjudicated, the issue as listed on the title page of this decision is the only matter for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The record does not establish that the correct facts, as they were known at the time of unappealed rating decisions in January 21, 1988, and August 3, 2007, were not before VA or that VA incorrectly applied the statutory or regulatory provisions at the time such that the outcome of the claim would have been manifestly different but for the error. 3. The Veteran's application received by VA on March 29, 2006, was accepted as a request to reopen the claim for entitlement to service connection for PTSD; an effective date has been established from this date. CONCLUSION OF LAW The criteria for an effective date earlier than March 29, 2006, for the grant of service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Court has held that the VCAA is not applicable to claims alleging clear and unmistakable error. Livesay v. Principi, 15 Vet. App. 165 (2001). The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private treatment records, Social Security Administration (SSA) records and the Veteran's statements in support of his claim. The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. VA law provides that the effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). VA regulations also provide that the terms claim and application mean 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) (2012). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of a duly constituted rating agency . . . shall be final and binding . . . based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C.A. § 5108 (West 2002). An exception to this rule is when the VA has made a clear and unmistakable error in its decision pursuant to 38 C.F.R. § 3.105. Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a) (2012). 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 v. Brown, 6 Vet. App. 40, 44 (1993). 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 Court in a claim of CUE). In asserting a claim of CUE, the claimant must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be "undebatable" and 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 v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc). The Court has further elaborated that CUE is a very specific and rare kind of error of fact or law that compels the conclusion, without doubt, that but for the error, the result would have been manifestly different. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Final decisions are accorded a presumption of validity, and to simply claim CUE on the basis that a previous adjudication had improperly weighed and evaluated evidence can never rise to the stringent definition of CUE. Luallen v. Brown, 8 Vet. App. 92, 94 (1996); Fugo, 6 Vet. App. at 44 (citing Russell, 3 Vet. App. at 314). Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of clear and unmistakable error. Id. Additionally, the Court held that VA's breach of its duty to assist cannot form a basis for a claim of clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a breach of a duty to assist cannot constitute CUE and that even a "grave procedural error" does not render a decision of VA non-final. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). The Court has also held that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application. See Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). In this case, service records show the Veteran retired in October 1985 with over 20 years of active military service including four years and six months as a strategic navigator bombardier. His service awards included the Vietnam Service Medal. Service treatment records dated in November and December 1984 included diagnoses of anxiety with notation of job-related stresses. A February 1985 retirement examination revealed a normal clinical psychiatric evaluation. In his January 1987 application for VA compensation benefits the Veteran noted treatment for stress during active service. Upon VA PTSD examination in October 1987 the Veteran recalled his "worst experience of Vietnam" involving a bombing mission that killed an estimated 5,000 civilians and recalled having dropped bombs on 400 special forces troops who were surrounded by enemy forces. A mental status examination was conducted, but the examiner found no Axis I diagnoses. A January 21, 1988, rating decision, in pertinent part, denied entitlement to service connection for PTSD. The Veteran was notified of the decision and his appellate rights by correspondence dated January 26, 1988. In correspondence dated in April 1992 the Veteran requested entitlement to service connection for bipolar disorder. VA treatment records noted he had been hospitalized for depression in December 1990 and a January 1991 report noted diagnoses of bipolar depression and PTSD. A November 1993 rating decision denied service connection for a chronic acquired psychiatric disorder which was identified as a bipolar disorder. The rating decision also noted that service connection for PTSD had been denied in a January 1988 rating decision. It was noted, in essence, that the Veteran's statements did not indicate a desire to reopen his claim for PTSD. The Veteran and his service representative were notified of this decision and his appellate rights by correspondence dated January 14, 1994. On March 29, 2006, VA received the Veteran's application for VA compensation benefits including for PTSD. In support of his claim he provided a copy of a March 2006 private psychological report which provided diagnoses of bipolar disorder and PTSD. It was noted the Veteran manifested a long history of clinical depression since 1970 with psychiatric assistance beginning in 1990. VA examination in July 2007 included diagnoses of bipolar disorder and PTSD. An August 3, 2007, rating decision established service connection for PTSD and assigned an effective date from March 29, 2006, which was noted as the date of receipt of his claim to reopen. As for the pertinent laws and regulations governing service connection in effect at the time of the January 1988 rating decision, 38 U.S.C.A. § 310, 331 (although renumbered 38 U.S.C.A. §§ 1110, 1131 on August 6, 1991) and 38 C.F.R. § 3.303, service connection could be granted for disability resulting from disease or injury incurred in or aggravated by service. Service connection could also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, established that the disease was incurred in service. 38 C.F.R. § 3.304(d) (effective before and after July 1, 1988). The Board notes further that 38 C.F.R. § 3.304(f), which establishes the unique legal criteria for PTSD, including the requirement of "medical evidence establishing 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," was not effective until May 19, 1993, which is well after the January 1988 rating decision. See 58 Fed. Reg. 29110 (May 19, 1993); 38 C.F.R. § 3.304(f) (1993). The Board notes further that the amendment to 38 C.F.R. § 3.304(f) to require that the medical evidence diagnosing PTSD comply with 38 C.F.R. § 4.125(a) which requires the diagnoses of mental disorders conform to DSM-IV was effective March 7, 1997, again well after the January 1988 rating decision. See 64 Fed. Reg. 32807 (June 18, 1999). At the time of the January 1988 rating decision, the legal criteria for service connection for PTSD were the same as for other psychiatric disabilities. See 38 U.S.C. §§ 310, 331 (effective prior to August 6, 1991); 38 C.F.R. § 3.303 (1987). At the time of the August 2007 rating decision, service connection for PTSD required, in pertinent part, medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence established that the Veteran engaged in combat with the enemy and the claimed stressor was related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor was 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 C.F.R. § 3.304(f) (2007). In correspondence dated August 25, 2008, the Veteran's service representative requested entitlement to an earlier effective date based upon CUE in the original rating decision (erroneously identified as dated July 31, 1987). It was noted that the Veteran had reported that from the time of his retirement from active service he had manifested symptoms of PTSD and that an August 2008 opinion from a private psychologist found his original symptomatology was more consistent with that of PTSD. In correspondence dated in July 2010 the Veteran asserted that his original VA compensation examination was not in accordance with "DSMV-IV" and that the subsequent rating decision was based upon incomplete and inaccurate data. Based upon the evidence of record, the Board finds that it is not established that the correct facts, as they were known at the time of unappealed rating decisions in January 21, 1988, and August 3, 2007, were not before VA or that VA incorrectly applied the statutory or regulatory provisions at the time such that the outcome of the claim would have been manifestly different but for the error. The January 1988 rating determination is shown to have been provided based upon the evidence then of record and the effective date assigned in the August 2007 rating decision is shown to have been based upon the date of receipt of the Veteran's request to reopen his claim. The Veteran's claim as to error in the January 1988 rating decision, in essence, asserts a breach of a duty to assist in providing an adequate medical opinion, in the Veteran's opinion, which is not CUE under VA law. The Veteran has identified no specific error as to the assigned effective date in the August 2007 rating decision. There is no indication based upon the available record that the January 21, 1988, or August 3, 2007, decisions should be considered "non-final" as a result of a due process violation. The Board further finds that the Veteran's application received by VA on March 29, 2006, was appropriately accepted as a request to reopen the claim for entitlement to service connection for PTSD and that an effective date for the award of service connection for PTSD has been established from this date. There is no evidence of an earlier unadjudicated request to reopen. Therefore, the appeal must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER Entitlement to an effective date earlier than March 29, 2006, for service connection for PTSD based upon CUE in rating decisions dated January 21, 1988, and August 3, 2007, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs