Citation Nr: 1302865 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 03-09 150 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE 1. Entitlement to an effective date earlier than April 28, 1995, for the award of service connection for major depression. 2. Whether a November 22, 1971, rating decision should be revised on the basis of clear and unmistakable error (CUE) in that decision. ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to January 1971. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2002 RO rating decision that granted service connection and assigned a 70 percent evaluation for major depression, effective on April 28, 1995. The Board issued a decision in April 2004 that denied an effective date earlier than April 28, 1995, for the service-connected major depression. The Veteran thereupon filed an appeal with the United States Court of Appeals for Veterans Claims (Court). In September 2006, the Court issued an Order that vacated the Board's April 2004 decision and remanded the case back to the Board for actions in compliance with the Court's directives. In February 2007, the Board remanded the case for additional development and further review by the RO. In a January 2009 decision, the Board denied an claim for an effective date earlier than April 28, 1995, for the grant of service connection for major depression and determined that a November 1971 rating decision was final and did not contain CUE. In a June 2010 Memorandum decision, the Court vacated the January 2009 decision and remanded the matter to the Board for additional action. In a March 2011 decision, the Board again denied the claim for an effective date earlier than April 28, 1995, for the grant of service connection for major depression, determined that the November 1971 rating decision was final and dismissed the motion for finding CUE in the November 1971 rating decision due to the lack of a valid motion for CUE. In a May 2012 Memorandum Decision, the Court vacated the March 2011 decision and remanded the matter to the Board for additional action. FINDINGS OF FACT 1. The Veteran's October 4, 1971, application for compensation benefits for a "nervous condition" is reasonably construed as a claim of service connection for chronic anxiety, a depressive neurosis and a schizoid personality disorder. 2. The November 22, 1971, rating decision of the RO that denied the Veteran's claim of service connection for a "nervous condition" and implicitly addressed service connection for chronic anxiety, a depressive neurosis and a schizoid personality disorder . 3. In a December 27, 1971, letter, the RO provided the Veteran with notice of the November 1971 decision denying his claim of service connection for a "nervous condition"; a copy of the letter was also sent to his representative of record at that time. 4. The December 27, 1971 letter also notified the Veteran of his appellate rights, but he did not timely appeal from the November 1971 rating decision. 5. The Veteran is not shown to have been prevented from submitting a timely Notice of Disagreement with respect to the denial of his claim of service connection for a "nervous condition" because mental incapacity. 6. The timing and contents of the December 1971 notice letter were sufficient that, under the facts of this case, a reasonable person would have known that service connection was being denied for any "nervous condition" including a depressive neurosis diagnosed after service as well as for chronic anxiety and schizoid personality disorder noted in service. 7. On April 28, 1995, the RO received the Veteran's petition to reopen his previously denied claim of service connection for a nervous condition identified as depression, a dysthymic disorder and a depressive neurosis. 8. In a June 2002 rating decision, the RO granted service connection for major depression, effective on April 28, 1995, or the date of receipt of the Veteran's reopened claim. 9. For the period from 1971 to April 28, 1995, the Veteran is not shown to have presented another formal or informal claim to reopen the previously denied matter of service connection for a psychiatric disorder. 10. The Veteran has not identified with requisite specificity an instance of CUE in the facts as known or the law as applied at the time of the RO's November 1971 decision, such as would, if true, establish an undebatable error that would change the outcome of that decision. CONCLUSIONS OF LAW 1. The November 1971 rating decision denying service connection for a "nervous condition" implicitly included the disability manifested by a schizoid personality disorder, a depressive neurosis and chronic anxiety is final. 38 U.S.C.A. §7105 (West 2002); 38 C.F.R. § 20.200 (2012); Cogburn v. Shinseki, 24 Vet. App. 205, 212-14 (2010). 2. An effective date for the grant of service connection for major depression earlier than April 28, 1995, the date of the reopened claim, is not assignable by law. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155(a), 3.400 (2012). 3. A valid motion of CUE has not been presented to reverse or revise the RO's November 1971 decision denying service connection for a "nervous condition." 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an earlier effective date for the award of service connection for major depression, to include whether the November 1971 rating decision is final. Duty to Notify and Duty to Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). By way of a letter dated in June 2007, the Veteran was furnished notice of the type of evidence needed in order to substantiate his claim for an earlier effective date, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The claim for an earlier effective date was readjudicated in the April 2008 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). While the Dingess notice was not provided prior to the initial adjudication, the Veteran has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process and the claim was readjudicated in April 2008. The Veteran has not alleged any prejudice as a result of the arguably untimely notification, nor has any been shown. It is also clear from the Veteran's arguments that he has actual knowledge as to how an effective date is assigned, as demonstrated by statements from the Veteran dated in April 2003, January 2007, and October 2010. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and has not been prejudiced by any technical notice deficiency along the way. Further, the effective date issue on appeal ultimately stems from a notice of disagreement with an RO rating decision implementing a March 2002 Board decision that granted service connection for a psychiatric disability; thus, the Veteran's claim for service connection was not only substantiated, it was proven; the purpose of VA's duty to notify had been met, and no further duty to notify arose from the Veteran's July 2002 notice of disagreement with the RO's rating decision, issued in June 2002. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to assist has been met. There is no identified relevant evidence that has not been accounted for. The Board finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). In particular, the information and evidence associated with the claims file includes the Veteran's service treatment records, post-service medical treatment records, VA examination reports, and statements submitted by the Veteran in support of the claim. This appeal has been pending for more than ten years and the Veteran has had multiple opportunities to submit evidence in support of his claim. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance is required to assist the Veteran in substantiating his claim for an earlier effective date. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). On this point, the Board notes that, in October 2012, the Veteran indicated that he did not have anything else to submit and requested that the Board proceed immediately with consideration of his appeal. In an attached letter, the Veteran stated that he did not intend to submit any additional evidence or argument other than an attached brief and requested that the Board proceed with consideration of his appeal immediately. Thus, he has made the Board aware of no additional evidence or desired or warranted assistance relevant to his appealed claims. Legal Criteria In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in a current disability was incurred in active service, or if pre-existing active service, was aggravated therein. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q) and (r). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). An informal claim is 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 not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is required to look to all communications from the appellant that 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 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); See Servello v. Derwinski, 3 Vet. App. 196 (1992). All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by the Department, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of CUE. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105(a). A claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that the agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has made it clear that an appellant generally can attempt to overcome the finality of a prior final decision of the RO or Board in only two ways: By a request for revision of an RO or Board decision based on CUE, or by a claim to reopen based upon new and material evidence. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 7111(a) ("A decision by the Board is subject to revision on the grounds of [CUE]. If evidence establishes the error, the prior decision shall be reversed or revised."). Of the two options for challenging a final decision, only a request for revision premised on CUE could result in the assignment of an earlier effective date for an award of service connection, because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which the claim to reopen was received. 38 U.S.C. § 5110(a); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of CUE, [the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("[W]hen a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."); see also Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). Analysis In the present case, the Veteran argues that the effective date for the award of service connection for major depression should be January 9, 1971, the day after he was separated from service. The currently assigned effective date is April 28, 1995. The service treatment records showed that, at enlistment examination in June 1967, clinical evaluation of the Veteran was psychiatrically normal. The service treatment records further showed that, during service, the Veteran underwent psychiatric evaluation, and the assessment was that of schizoid personality disorder. An undated service treatment record showed that the Veteran reported that, when he was in high school, his family underwent counseling with a social worker because of trouble the parents and children had getting along. He reported having trouble getting along with people. It was noted that the Veteran was extremely moody and labile in his emotions. The recommendation was for psychotherapy. The service treatment records further showed that, in December 1969, the Veteran reported being nervous about nothing in particular. It was noted that he was sleeping okay. The impression was that of chronic anxiety. The separation examination dated in November 1970 indicated that, upon clinical evaluation, the Veteran was found to be psychiatrically normal. It was noted that the Veteran had a minor psychophysiologic reaction in August 1968 with no recurrence and had a psychiatric consultation at that time, but had not returned for treatment. The diagnosis was that of schizoid personality disorder. Shortly after the Veteran's discharge from service, on January 25, 1971, the Director and Agent for the Massachusetts Department of Veterans Service, undertook representation of the Veteran and submitted to VA on the Veteran's behalf the Veteran's DD Form 214, a form designating him as the Veteran's power of attorney before VA, and an application for a program of education on behalf of the Veteran. On October 4, 1971, the Veteran's application for compensation and pension for a "nervous condition" was received at the RO. In the October 1971 application for compensation, the Veteran indicated that he was treated at a VA hospital in Brockton, Massachusetts, for three days, from September 22, 1971 to September 24, 1971, and at a VA outpatient care center beginning on September 24, 1971. Also in his October 1971 application for compensation, the Veteran indicated that he was treated by a private physician in April 1971, at St. Elizabeth Hospital, in Brighton, Massachusetts. In a November 22, 1971, rating decision, the RO denied the Veteran's claim of service connection for a "nervous condition." The rating decision stated that the Veteran's official service records showed that he was observed in August of 1968 for emotional problems and found to have a schizoid personality disorder. The RO denied the claim on the basis that the Veteran had a schizoid personality disorder, which was a constitutional or developmental abnormality, and was not a disability under the law. In a December 27, 1971, letter, the RO provided the Veteran with notice of the November 1971 decision denying his claim of service connection for a "nervous condition" for the reason that it was not considered a disability within the meaning of the law. A copy of the letter was sent to his representative at the time, Massachusetts Veterans Services. The December 27, 1971, denial letter stated as follows: This will advise you of the decision in your claim for disability. Based upon a complete review of your service records and the other evidence contained in your file, it ha[d] been necessary to deny your claim. This denial was based upon a determination that your Nervous condition [was] not considered a disability within the meaning of the law. The December 1971 denial letter indicated that a VA Form 21-4107, which was the VA form advising a claimant of his appellate rights, was the only enclosure with the letter. The December 1971 denial letter also indicated that a copy was mailed to his then-representative, Massachusetts Veterans Services. A VA Form 10-7131, Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action, indicated to have been received by the RO on September 29, 1971, is associated with the claims file. This Form appears first to have been received by the Veteran in 1995 when he personally obtained from the VA Medical Center (VAMC) in Brockington his 1971 records of VA psychiatric hospitalization and treatment. This form indicates that from September 22, 1971, to September 24, 1971, the Veteran was hospitalized for a depressive neurosis. On September 11, 1972, the Veteran was certified for VA educational benefits purposes as enrolled for 15 credits to pursue an undergraduate standard degree, for the period from September 11, 1972, to June 1, 1973, at the University of Massachusetts. On September 14, 1972, the Veteran was awarded VA education benefits effective on September 11, 1972, for the ensuing school year. The Veteran asserts that the November 1971 rating decision of the RO only denied his claim of service connection for schizoid personality disorder and that this rating decision did not adjudicate the other claims of service connection for chronic anxiety and depressive neurosis. The Veteran asserts that, since these claims were still pending, the effective date for the award of service connection for major depression should have been January 9, 1971, the day after service separation since the October 1971 claim was received at the RO within the one year time period after service. The Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009), held that regardless of whether a claimant identifies a particular mental disorder upon filing an initial claim, the scope of the claim is not limited to that condition, but is "considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that [VA] obtains in support of the claim." Moreover, the Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The law generally requires VA to "give a sympathetic reading to the Veteran's filings by 'determining all potential claims raised by the evidence, applying all relevant laws and regulations.'" See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)). Accordingly, in this case, the Board finds that, to the extent that the December 27, 1971, notice letter was clear in notifying the Veteran that his claim of service connection for a "nervous condition" had been denied based on the evidence of record, this decision implicitly included claims of service connection for chronic anxiety and a schizoid personality disorder noted during service and a depressive neurosis that was noted by the Veteran to have been treated after service in his application for service connection. In the May 2012 Memorandum Decision, it was stated: Despite the apparent clarity that the Board discerns from the 1971 rating decision, it remains entirely unclear to the Court what information in the rating decision the Board regards as alluding to the appellant's overall psychiatric disability in such a way that the appellant reasonably could have inferred that that RO determined he did not have a specific anxiety disorder or depressive neurosis that was present in or could be linked to service. (Emphasis in original.) The Court in this regard requested that the Board address the four prongs of its precedential decision in the case, Cogburn v. Shinseki, 24 Vet. App. 205, 212-214 (2010) concerning the "implicit denial" rule. Although the November 1971 rating decision did not explicitly address chronic anxiety or depressive neurosis, "a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [VA] did not expressly address that claim in its decision." Adams v. Shinseki, 568 F.3d 956, 961 (Fed.Cir.2009). This "implicit denial" rule will result in the termination of the pending status of a formal or informal claim. Munro v. Shinseki, 616 F. 3d 293 (Fed. Cir. 2010). For an "implicit denial" of an unadjudicated claim, the issue must be closely related to the adjudicated issue. See Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). "[T]he key question in the implicit denial inquiry is whether it would be clear to a reasonable person that [VA's] action that expressly refers to one claim is intended to dispose of others as well." Id. at 964; see also Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007) (holding that "a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability"). The four factors to be considered to determine whether a claim was implicitly denied are: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented." Cogburn v. Shinseki, 24 Vet. App. 205, 212-14 (2010). Relatedness of the Claims In this case, the Board finds that the adjudicated claim of service connection for a "nervous condition" included the schizoid personality disorder diagnosed during service as well as the findings of chronic anxiety noted in service and the depressive neurosis initially identified after service as a manifestation that the Veteran himself generally linked to the "nervous condition" for which he was claiming service connection. As noted in his application, the Veteran expressly identified having treatment after service for manifestations that were diagnosed as being due to a depressive neurosis. Thus, this diagnosis by the Veteran's own statement must reasonably be construed as being his "nervous condition." In Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009), the Federal Circuit addressed similar facts and found that the Court had correctly applied the implied denial rule in denying an earlier effective date for the grant of service connection for endocarditis. The Federal Circuit upheld the Court's determination that the Veteran was reasonably notified that the endocarditis claim was also denied along with heart disease claim, based on Veteran's own reference to his "heart condition," which generally encompassed both rheumatic heart disease and endocarditis claims due to their close relatedness medically and in time and manner of their filing. Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). Significantly, in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the Federal Circuit held that if the RO in that case improperly failed to address his claim for psychiatric disability benefits when it granted service connection for his head injuries in 1985, the remedy was either to file a timely direct appeal or to file a CUE claim seeking to reopen the 1985 RO decision. To the extent that the appellant now argues that the Diagnostic and Statistical Manual of Mental Disorders (2d ed.1968) (DSM-II) provided that anxiety and depression were neuroses, and personality disorders were not, the Board finds that such a distinction is meaningless given the facts in this case. See DSM-II at 41 (providing that personality disorders "are characterized by deeply ingrained maladaptive patterns of behavior that are perceptibly different in quality from psychotic and neurotic symptoms.") Here, the RO addressed the Veteran's claim of service connection for a general psychiatric condition, that for the purpose of relatedness, this must include any of his psychiatric diagnoses at that time. The December 1971 notice letter sent to the Veteran did not specifically discuss a schizoid personality disorder, a depressive neurosis, or chronic anxiety. However, the letter is clear in stating that service connection was denied for the claimed "nervous condition." The conditions are related because each was either noted during service or in connection with identified treatment thereafter. The relatedness of the conditions is further illustrated by VA records of treatment, which contained differing diagnoses, including "depressive neurosis" and "anxiety neurosis--schizoid personality." To the extent that the Veteran had actual knowledge of his "nervous condition" at that time, he cannot now assert that a claim of service connection for a specific psychiatric diagnosis including a depressive neurosis, had remained unresolved since that time. Whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied. As noted, in Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009), the Federal Circuit upheld the Court's determination that the Veteran was reasonably notified that an informal claim for service connection for endocarditis claim was also denied along with heart disease claim, based on the Veteran's own reference to his "heart condition," which generally encompassed both rheumatic heart disease and endocarditis claims due to their close relatedness medically and in time and manner of their filing. Although in the November 1971 rating decision the RO cited schizoid personality disorder and not chronic anxiety or depressive neurosis in its reason for denying the claim, the RO at that time was not required to provide a reason for the denial. Even a wrong reason is not basis per se for finding that a claim remained in an unchallenged state. See Natali v. Principi, 375 F.3d 1375, 1380 (Fed.Cir.2004) (finding that RO decisions prior to 1988 were not required to contain reasons for their decisions). The Federal Circuit noted that recitations of reasons and bases were not required for rating decisions that predated the Veterans' Benefits Amendments of 1989, Pub.L. No. 101-237, 103 Stat.2062 (1988), which added the statutory provision mandating that decisions denying benefits include a statement of the reasons for the decision at § 115(a), currently codified at 38 U.S.C. § 5104(b). See Natali v. Principi, 375 F.3d 1375, 1380 (Fed.Cir.2004). Further, the actual notice that was provided to the Veteran did not make a distinction between a schizoid personality disorder, chronic anxiety, or a depressive neurosis. The notice plainly informed him that his claim for service connection for a "nervous condition" had been denied. The timing here strongly supports the finding that the Veteran was seeking service connection for a "nervous condition" that reasonably included a depressive neurosis, for which he was treated in September 1971. The Veteran had been adequately informed that his claimed "nervous condition" was not considered by VA to be a disability and that he could file a Notice of Disagreement from that decision. Absent such a response from him, the RO had no duty to further develop or address the claim. The Timing of the Claims As discussed, the timing of the application, decision and notice to the Veteran in this matter clearly supports a finding that the notice was sufficient to inform the Veteran that the denial of his claim of service connection for any acquired psychiatric disorders including the depressive neurosis for which he received VA treatment. As described, one application for service connection was received in this matter in October 1971; one rating decision was issued in November 1971; and a single notice letter informing the Veteran of the RO's rating decision was issued in December 1971. During service, the Veteran was found to have chronic anxiety in December 1969, and a schizoid personality disorder at discharge. In September 1971, the Veteran was hospitalized at VA for a depressive neurosis. The Veteran's original application for compensation was received by the RO on October 4, 1971 claiming a "nervous condition" without elaboration. Dates of both in-service and post-service treatment were indicated in his application and this claim was characterized by the Veteran as a claim for a "nervous condition." Thus, in the present case, the Board finds that timing of the December 1971 notice letter supports the finding that the Veteran reasonably knew that the denial of service connection for a "nervous condition" included the claims for a schizoid personality disorder, chronic anxiety or a depressive neurosis. Whether the claimant was represented A letter in the claims file, dated January 25, 1971, to the RO, from the town of Canton, Massachusetts, Department of Veterans Services, states: Enclosed herewith are forms DD 214 (Record of Discharge), 23-22 (Power of Attorney) and 21E-1990 (Application for program of Education) on the above named veteran. Please file these with the V.A. for this department. Thank you for your cooperation in this case. The letter is signed by the Director and Agent of the organization, F.J.B. In February 1971, the Veteran was approved to pursue a bachelor's degree and masters' degree at the University of Massachusetts in Boston. Later, in February 1971, he was found also to be eligible to pursue a Ph.D. He was certified as enrolled at the University of Massachusetts from February 1971 to June 1971. Thus, on this record, there is a showing that the Veteran had actual assistance in filing for benefits with VA. A copy of the December 27, 1971, notice letter informing the Veteran that his claim for service connection for a nervous condition was being denied was sent to Massachusetts Veterans Service. The Veteran here alleges that he either did not know he was represented or received little assistance from the representative. However, the record shows that the Veteran did receive assistance from his representative in successfully filing for VA educational benefits in the first year after service. The Veteran was adequately informed in the December 1971 notice letter that his representative was being informed of the RO's decision. This evidence tends to show that, given the accepted practice for the time in question, the Veteran did receive adequate assistance in connection with the filing of his original claim for compensation and that the quality of this representation did not negatively impact on his ability to understand that he could have appealed the November 1971 rating decision that denied his claim of service connection for a "nervous condition." In its May 2012 Memorandum Decision, the Court noted the Veteran's contention that he was not capable of submitting a Notice of Disagreement at the time of the December 1971 notice letter. The Veteran asserts in this regard that, in 1971, he was mentally ill and was unable to file an appeal. In Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004), the Federal Circuit held that mental illness might justify the tolling of the 120-day time limit for filing an appeal to the Court set forth at 38 U.S.C.§ 7266(a). Specifically, the Federal Circuit held that equitable tolling might be available where a claimant is able to show that his mental illness "rendered him incapable of 'rational thought or deliberate decision making,' or 'incapable of handling his own affairs or unable to function in society'." Significantly, in that decision, the Federal Circuit held that a medical diagnosis alone or vague assertions of mental problems would not suffice. Id. at 1321. The medical evidence for the time period in question does not show that the Veteran was not competent in 1971. There is no suggestion in the record that the Veteran was incompetent for VA purposes or otherwise mentally incapable of pursuing a timely appeal at that time. The Board also notes that the Veteran never filed an appeal from the November 1971 rating decision. In such a circumstance, it is arguable that the doctrine of equitable tolling may not apply at all. See McPhail v. Nicholson, 19 Vet. App. 30, 34 (2005) ("...Court has been unable to find any case where equitable tolling was applied to performing an action on a timely basis where the action had not ultimately been performed."). A private treating psychotherapist opined in April 2003, based on review of the 1971 VA treatment records and his knowledge of the Veteran's condition, that, in view of the Veteran's mental condition in 1971, he "could not have proactively responded to VA's denial of his claim." However, the probative value of this statement is largely diminished by the lack of a recitation of history or supporting medical findings. The physician added that, given his above-average intellect, the Veteran would have been able to understand the process at any time in his life, but the "question of whether he had the emotional wherewithal to pursue the process [was] more complex." Significantly, at a January 1996 RO hearing, when asked why he did not appeal the December 1971 RO rating decision, the Veteran responded as follows: Ah, all I [could] recall about that [was] I was probably just naïve about the process, and I didn't, I just didn't follow through with it. I mean, at the time I applied, I was, I was extremely depressed. That's why I went to the hospital in the first place. And I just wasn't thinking about that. I just was thinking about getting involved in the program. The September 1971 records of VA treatment in this regard confirmed that the Veteran was depressed, felt that he was punishing himself for something he did a long time ago, wanted to grow up, and had issues relating to his childhood, but did not serve to show that he was mental incapable of filing a timely appeal. A November 1971 record of treatment stated that the Veteran was continuing to deal with the many antecedents of his present life problems and continued to be more in touch with his emotional life. A December 1971 treatment record noted that the Veteran was cleared for a recreation program and had an outside job in the evenings. The Veteran is also shown to have been awarded VA education benefits effective on September 11, 1972, for the ensuing school year. The Veteran also argues that VA should apply the law and regulations applicable to the Social Security Administration (SSA) and find that, because he was mentally ill and unrepresented, the November 1971 rating decision was not final. However, VA is not bound by the law of other agencies, including the SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Assignment of Effective Date The record shows that the Veteran petitioned to reopen the claim of service connection for a psychiatric disorder, specifically a dysthymic disorder and major depression, in April 1995. In May 2000, the Board reopened the previously denied claim, and the Board granted the service connection in March 2002. In a June 2002 rating decision, the RO granted an effective date for service connection for major depression of April 28, 1995, the date of his reopened claim. The provisions of 38 C.F.R. § 3.400(r) provide that the effective date for an award of service connection is the date of a successful application to reopen the claim supported by new and material evidence, or the date entitlement arose, whichever is later. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Therefore, the Board finds that an effective date for the grant of service connection for major depression earlier than April 28, 1995, the date of receipt of the reopened claim, may not be assigned by law. The Board has also reviewed the record to determine whether an informal claim of service connection for a psychiatric disorder had be filed in the time period extending from December 1971 (the last final rating decision) to April 27, 1995 (the date of receipt of the claim to reopen). VA is required to identify and act on informal claims for benefits. 38 C.F.R. § 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). No document was received between December 1971 and April 27, 1995, that could have been construed as a petition to reopen the claim of service connection for a psychiatric disorder. The only document submitted during this period was a certificate of marriage, and this does not evidence an intent to file for compensation benefits. Thus, the Veteran is not shown to have applied to reopen the claim prior to April 28, 1995, making this later than any earlier date claimed as marking when entitlement arose. The Veteran asserts that the September 1971 VA treatment records should be construed as a claim of service connection for depressive neurosis. The Board emphasizes that a veteran is required to file a claim to obtain benefits and that, at a minimum, the veteran must identify the benefit sought in such a claim. See 38 C.F.R. §§ 3.151, 3.155; see also Kessel v. West, 13 Vet. App. 9 (1999). Medical evidence alone without an intent to apply for benefits does not establish a claim. See Kessel v. West, 13 Vet. App. 9 (1999). The mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Merely seeking treatment, does not establish a claim, to include an informal claim, for compensation. Thus, the September 1971 VA treatment records in and of itself cannot be considered to be a claim of service connection for a psychiatric disorder. The Veteran also asserts that a VA Form 10-7131 should be construed as an informal claim of service connection for a psychiatric disorder. This document is dated April 1979 at Part I and May 1979 at Part II and was received at the RO in May 1979. In the document the RO verified that the Veteran's service dates, birth date, and branch of service were correct and indicated that the Veteran was not service-connected for any condition. The Board finds that this document does not meet the requirements of an informal claim for compensation benefits for a psychiatric disorder since this document was not submitted by the Veteran, does not identify a disability, and does not evidence an intent on the part of the Veteran to file a claim for compensation benefits. Accordingly, under the applicable regulations, April 28, 1995, the date of receipt of the reopened claim that triggered the allowance, is the earliest effective date for the award of service connection for major depression. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In order for the Veteran to be awarded an effective date based on an earlier claim, he would have to establish clear and unmistakable error in the prior denial of that claim. Flash v. Brown, 8 Vet. App. 332 (1995). On this record, the November 1971 rating decision denying service connection for a nervous condition to include a schizoid personality disorder, chronic anxiety and depressive neurosis is final and not subject to revision on the same factual basis or in the absence of clear and unmistakable error. II. Whether there is clear and unmistakable error in the November 1971 rating decision that denied service connection for nervous condition. Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5106, 5103A, 5107, 5126 (West 2002), is not applicable to a claim for revision or reversal of a final decision on the basis of CUE. See Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001) (en banc). Legal Criteria CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that their results would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In Russell v. Principi, 3 Vet. App. 310 (1992), the Court set forth a three-pronged test for determining when there is CUE present in a prior decision. These are (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 a the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. at 313-14. See also Bustos v. West, 179 F. 3d 1378, 1380-81 (Fed. Cir. 1999) (to prove CUE, a claimant must show that an error was outcome-determinative, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 235 (2004). In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court refined and elaborated on the test set forth in Russell. In Fugo the Court stated: CUE is a very specific and rare kind of 'error.' It is the kind of error, of fact or of 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...If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo, 6 Vet. App. at 43-44 (emphases added). Thus, as a threshold matter, a claimant must plead CUE with sufficient particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE motion. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995) (same). The Court has also held that allegations that previous adjudications have improperly weighed or evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Similarly, the Court has held that the VA's breach of its duty to assist cannot form a basis for a claim of clear and unmistakable error. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Significantly, with respect to the third prong of the test, the Board notes that, in Berger v. Brown, 10 Vet. App. 166 (1997), the Court has held that "opinions from this Court that formulate new interpretations of the law subsequent to [a VA] decision cannot be the basis of a valid clear and unmistakable error claim. Id. at 170. The Court reaffirmed this principle in Brewer v. West, 11 Vet. App. 228, 234 (1998) and Smith v. West, 11 Vet. App. 134, 137 (1998). Indeed, in Brewer, the Court held that, although judicial decisions made during the course of an appeal are retroactively applicable to pending appeals, for purposes of adjudicating motions of CUE in a prior VA decision, "new" judicial interpretations of the law that were not issued at the time of the prior VA decision are not applicable. Id. at 234. Analysis The Veteran argues that the November 1971 rating decision involved CUE because the RO failed to consider the finding of chronic anxiety in the service treatment records as a diagnosis of an acquired psychiatric disability and that the RO adjudicators did not consider all of the evidence of record at the time of the November 1971 rating decision and failed to meet the duty to assist by not obtaining VA treatment records or further investigating the claimed diagnosis of a "nervous condition." As a threshold matter, the Board finds that the Veteran has not advanced arguments of requisite specificity to constitute of valid assertions of CUE. See Phillips; Luallen; supra. After carefully reviewing the record in November 1971, the Board finds that there was a tenable basis for the RO's denial of the claim of service connection for a "nervous condition" based on the facts presented and the applicable law extant at that time. In reaching this determination, the Board initially finds that the statutory and regulatory provisions at the time of the November 1971 decision were correctly applied. At the time of the November 1971 rating decision, the law and regulations concerning service connection were essentially the same as they are now. Service connection would be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The regulations also provided that service connection could 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. § 3.303(d). As now, the regulations provided that personality disorders were not diseases or injuries within the meaning of applicable legislation. In addition, the evidence of record included the service treatment records showing that the Veteran was seen in service for psychiatric complaints. A treatment note indicated that the Veteran, after 26 months of service without disciplinary problems, had requested to see a psychiatrist because of emotional difficulties and that the Veteran's family had sought help when he was in the 10th or 11th grade because of "trouble of [sic] parents and children were having getting along together." The note did not elaborate on this, but the Veteran described himself as "obnoxious" and critical of others, with a persecution complex. After interviewing the Veteran, a psychiatric diagnosis of schizoid personality disorder was entered in service. This diagnosis was repeated at the time of the separation examination. The service treatment records also contained a December 1969 treatment entry stating that the Veteran was "nervous - nothing particular. Sleeping ok." An impression of chronic anxiety was noted, with a follow-up note that stated "records reviewed. Patient interviewed. No problem." The Veteran was discharged from service in January 1971 and filed for VA disability compensation in October 1971 for what he described as a "nervous condition." He reported being seen by a private physician and at VA, but did not submit medical records in connection with his claim. 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, and not on subsequent determinations of record. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). In determining whether the prior final rating decision is the product of CUE, the question is not whether the Board would have reached the same conclusion, but whether the decision contained an undebatable error of fact or law that was outcome-determinative. Accordingly, on this record, the Board finds that the correct facts as they were known were considered and addressed by the RO in the rating action in November 1971. To the extent that the Veteran now asserts that the decision involved CUE in not considering whether the claimed "nervous condition" was aggravated by service, the question of aggravation is not found to have been reasonably raised by the record. As the enlistment examination in June 1967 showed a normal psychiatric examination, a basis for addressing aggravation was not presented at that time. To the extent that the Veteran also is arguing that the notation of "chronic anxiety" in the service treatment records should have been afforded more probative weight, than the diagnosis of schizoid personality disorder, the Board notes that a disagreement with how the facts were weighed or evaluated is not adequate to raise a valid argument of CUE. Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992). The Veteran also argues that there was CUE in the November 1971 rating decision because the RO failed to consider VA treatments records that existed at the time of the decision and were identified by the Veteran in the original claim in November 1971. However, the doctrine of constructive notice, as established by the Court in Bell v. Derwinski, 2 Vet. App. 611 (1992), is not applicable in the case at hand. In Damrel v. Brown, 6 Vet. App. 242, 246 (1994), the Court held that the constructive notice doctrine could not be applied retroactively to VA adjudications occurring before Bell was decided. Hence, the VA treatment records dated in September 1971 cannot be found to be part of the record at the time of the November 1971 rating decision so as to be considered a basis for a finding of CUE. Moreover, the Veteran's argument that the RO failed in its duty to assist him at the time of the November 1971 decision by not obtaining the VA or non-VA treatment records must be discounted as the law is well settled that a failure in the duty to assist cannot constitute CUE. Caffrey v. Brown, 6 Vet. App. 377, 384 (1994) (noting that a breach in the duty to assist creates an incomplete record, not an incorrect record). The Veteran in this regard has not raised any argument as to how a claimed error within the meaning of CUE (i.e., other than a claimed deficiency in the duty to assist or error in the manner evidence was weighed) would have undebatably resulted in granting his claim of service connection for a "nervous condition" in the November 1971 rating decision. Therefore, as a motion of CUE has not been presented with the requisite specificity, the appeal to this extent must be dismissed. ORDER The claim for an effective date earlier than April 28, 1995, for the grant of service connection for major depression is denied. As a valid motion of CUE in the November 1971 rating decision denying service connection for a "nervous condition" has not been presented, the appeal to this extent is dismissed. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs