Citation Nr: 1310985 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 09-03 619A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an effective date earlier than August 8, 2007 for the grant of service connection for posttraumatic stress disorder (PTSD), to include on the basis of clear and unmistakable error (CUE) in a July 1998 rating decision. 2. Entitlement to an annual clothing allowance payment. 3. Entitlement to an increased evaluation in excess of 20 percent for diabetes mellitus with diabetic nephropathy and hypertensive vascular disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In letters from the Veteran received in March and August 2010, the Veteran claims entitlement to reimbursement for dental care. Although the letter received in August 2010 indicates that it is a "Notice of Disagreement," there is no indication in the claims file that a decision was ever rendered on this issue. Thus, the issue of entitlement to reimbursement for dental care has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to an annual clothing allowance payment and to an increased evaluation for diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The July 1998 rating decision which denied entitlement to service connection for PTSD has not been shown to contain any undebatable errors of fact or law. 2. The Veteran filed a request to reopen his claim of entitlement to service connection for PTSD on February 23, 2004, and filed a timely notice of disagreement as to the June 2005 rating decision that denied his claim; however, he did not receive a copy of the November 2006 Statement of the Case until September 2007. 3. Prior to receipt of the request to reopen the claim on February 23, 2004, there were no pending requests to reopen the claim of entitlement to service connection for PTSD that remained unadjudicated. CONCLUSIONS OF LAW 1. The July 1998 rating decision did not contain clear and unmistakable error. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.105 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an earlier effective date of February 23, 2004 for the grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 5103(a), 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.160, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date for the Grant of Service Connection for PTSD The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean, except as otherwise provided, that the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.155(a), a veteran or a representative of a veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. See also 38 C.F.R. § 3.1(p). A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. 38 C.F.R. § 3.155(b). Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of [an RO] shall be final and binding on all field offices of [VA] as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104." 38 C.F.R. § 3.104(a). However, effective dates may also be changed when a prior rating decision is found to have "clear and unmistakable error" (CUE) as described in 38 C.F.R. § 3.105. In determining whether a prior determination involves CUE, the United States Court of Appeals for Veterans Claims (Court) has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had 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 adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992) (en banc)). Generally, CUE exists when either the correct facts, as they were known at the time, were not before the decision maker(s), or the statutory and regulatory provisions extant at the time were incorrectly applied. See 38 C.F.R. § 20.1403(a); Sorakubo v. Principi, 16 Vet. App. 120 (2002). A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). In addition, the mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the Court has held that a 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, 383-384 (1994). CUE is a very specific and rare kind of "error." It is the kind of error in 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 manifestly have been different but for the error. Even when 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, 3 Vet. App. at 313-14). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey, 6 Vet. App. 377. In addition, an assertion of CUE is a motion or a request, rather than a claim. See Hillyard v. Shinseki, 24 Vet. App. 343, 355-356 (2011) (citing Rice v. Shinseki, 22 Vet. App. 447, 451 (2009) ("Motions alleging clear and unmistakable error ... in a prior decision have also often been referred to as 'claims'"). The Board notes that a CUE motion 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 that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a movant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Russell at 314; see also Yates v. West, 213 F.3d 1372 (2000). The Veteran filed an original claim of entitlement to service connection for PTSD in December 1997. The claim was denied in a July 1998 rating decision. He did not file a timely notice of disagreement (NOD), and the July 1998 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In February 2004, the Veteran filed a request to reopen his claim of entitlement to service connection for PTSD, and the RO denied reopening of the claim in a June 2005 rating decision, finding that no new and material evidence had been received. The Veteran filed a timely NOD, and the RO continued to deny reopening of the claim in a November 2006 rating decision. As no substantive appeal was received by the RO, it considered the June 2005 rating decision to be final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In August 2007, the Veteran filed another request to reopen his claim of entitlement to service connection for PTSD, and the RO, after reviewing new and material evidence which had been received into the record, granted the claim in the May 2008 rating decision that is the subject of this appeal. A 70 percent evaluation was assigned, effective from August 8, 2007, the date of receipt of the Veteran's request to reopen the claim for service connection. The Veteran first contends that the effective date should go back to the date of his original claim of entitlement to service connection in December 1997. Specifically, he contends that the evidence of record at that time showed a diagnosis of PTSD, and that the RO failed in its duty to assist by not obtaining records that would have substantiated his claimed stressors, and that if those records had been obtained, his claim for service connection would have been granted in the 1998 rating decision. In claims that have been reopened with new and material evidence, if there has been a final prior RO denial of the benefit sought, the effective date cannot be earlier than the subsequent request to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). Generally, the only way to overcome the finality of such a prior decision is to request revision of the decision based on clear and unmistakable error. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Here, the Veteran alleges that CUE was present in the July 1998 rating decision, as described above. For the reasons discussed below, however, the Board finds that the July 1998 rating decision denying service connection for PTSD was not clearly and unmistakably erroneous. First, the correct facts, as they were known at the time, were available to the RO. The RO had in its possession the Veteran's service treatment records which showed that the Veteran reported depression or excessive worry and nervous trouble at separation, but a normal psychiatric evaluation, and no other findings or symptoms of mental health problems during active service. Post-service treatment records from 1992 to 1995 were negative for any reports or findings of mental health problems. In addition, although post-service VA treatment records showed that VA clinicians assessed possible PTSD, the Veteran was afforded a psychiatric evaluation in July 1998 at which the examining psychologist, after interviewing the Veteran regarding his claimed PTSD stressors, diagnosed dysthymic disorder, but not PTSD, on Axis I of the DSM-IV diagnosis chart. The psychologist found that there was no evidence many of the typical PTSD symptoms, including anxiety disorder, avoidance of stimuli, diminished interest in activities, estrangement from others, survivor guilt, sense of foreshortened future, or outbursts of anger. There is no contention by the Veteran that the RO did not have access to any pertinent evidence. Rather, the Veteran argues that the RO should have obtained additional documentation from the appropriate service department that would have confirmed his claimed stressors, and that failure to request such documentation constituted a failure to fulfill its duty to assist. However, as noted above, a failure to fulfill the duty to assist does not constitute CUE. See Crippen, 9 Vet. App. at 424; Caffrey at 383-384. Further, the Veteran avers that his post-service medical records showed a definitive diagnosis of PTSD. However, the RO in 1998 determined that the 1998 psychiatric examination at which it was determined that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-IV outweighed the VA treatment records showing a possible diagnosis of PTSD. As noted above, how the RO weighed the evidence is not a basis for finding CUE. See Russell at 313. Further, there is no indication that the regulatory provisions existing at the time of the rating decision were misapplied. The 1998 rating decision includes a specific finding that there was no evidence of a current diagnosis of PTSD, and that the evidence available for review was insufficient to establish that a stressful experience occurred during active service. Thus, the RO considered all of the elements of establishing a claim for service connection for PTSD, which include a current diagnosis of PTSD, and credible supporting evidence of the claimed in-service stressor, and did not fail to consider whether there was a link between the current diagnosis and the in-service stressor, as there was neither a current diagnosis or a substantiated in-service stressor. Moreover, the Veteran does not contend that the RO misapplied the law existing at the time. Therefore, because the July 1998 rating decision was supported by the evidence of record as analyzed under the law in effect at the time, that rating decision, which denied service connection for PTSD, was within the bounds of sound judgmental discretion. Under those circumstances, the Board finds that the July 1998 rating decision was not a product of CUE. Next, the Veteran contends that, if the 1998 rating decision did not contain CUE, the effective date of the grant of service connection for PTSD should go back to February 2004, when he filed his request to reopen his claim of entitlement to service connection, as he avers that he never received the November 2006 Statement of the Case (SOC). After reviewing the evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds that the appropriate effective date for the grant of service connection for PTSD should be February 23, 2004, the date his request to reopen his claim of entitlement to service connection for PTSD was received by the RO. In determining that the effective date should be February 23, 2004, the Board finds the Veteran to be credible in his claim that he did not receive the November 2006 SOC, and thus, the claim that began in 2004 remained pending until it was eventually granted. The record shows that the Houston RO issued a rating decision in June 2005 that denied reopening of the PTSD claim, finding that no new and material evidence had been received. In September 2005, the Veteran filed a timely NOD, which he confirmed in April 2006. The claims file was transferred from the Houston RO to the Muskogee RO in June 2006, then transferred back to the Houston RO in August 2006. In September 2006, the Veteran then submitted correspondence indicating he had moved and advising the RO of his new address in the Philippines (he did not include a street address in this letter). In November 2006, the Houston RO sent an SOC continuing denial of the PTSD claim to the address exactly as it was written by the Veteran in his September 2006 correspondence. The SOC was not returned as undeliverable. The claims file was then transferred to the Manila RO. Generally, a "presumption of regularity 'supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.'" Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). If a claimant alleges nonreceipt of a VA notice letter, clear evidence rebutting the presumption of regularity "mandates not only a declaration by the appellant of nonreceipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery." Clarke v. Nicholson, 21 Vet. App. 130 (2007). An addressing error is consequential where it "results in an address that does not contain all the necessary address elements" sufficient to enable delivery. Id. (looking to the United States Postal Service (USPS) regulations to determine whether an addressing error was consequential to delivery); see also Crain v. Principi, 17 Vet. App. 182, 187 (2003) (sending notice to an incorrect mailing address "constitutes the 'clear evidence' needed to rebut the presumption of regularity that the BVA properly mailed notice of its decision"). In November 2006, the Veteran submitted correspondence unrelated to the PTSD claim which included a street name and apartment number for his address in the Philippines. The RO then sent two different letters to this address in February 2007 which were both returned as undeliverable, as the post office indicated he had moved. However, in July 2007, the Veteran sent yet another letter indicating that he had the same address in the Philippines as indicated in his original September 2006 and November 2006 letters, but stated that he had not received any denials of the various claims he had pending with VA. In August 2007, the Veteran sent a letter stating that he had received a confusing letter from VA asking whether he was reopening or filing a new claim for PTSD, as he stated he never received any notice of a decision on the claim. He further stated that, if the PTSD claim was closed, he wished to reopen it. In a later September 2007 letter, the Veteran stated that he did not receive the November 2006 SOC until September 2007 after requesting copies of all decisions from the past five years, and that he never received a VA Form 9 to complete. In light of the various returned letters and confusion over the Veteran's address, the Board finds the Veteran's contention that he never received the November 2006 SOC to be credible, and that, therefore, the effective date of the grant of service connection should go back to the date of his request to reopen his claim, which was February 23, 2004. The Board has also considered whether an even earlier effective date is possible, but finds that February 23, 2004 is the appropriate effective date. In that regard, the next question before the Board is whether there is any evidence in the claims file that can be construed as a claim for service connection prior to the filing of the written request to reopen that was received on February 23, 2004. The Board concludes there is not. Any communication or action, indicating 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. After reviewing the record, the Board concludes that there are no testimonial documents submitted prior to February 23, 2004, indicating intent to reopen a claim of entitlement to service connection for PTSD. It is further noted that, under 38 C.F.R. § 3.157, a report of examination or hospitalization by VA or one of the uniformed services will be accepted as an informal claim for benefits. However, the provisions of 38 C.F.R. § 3.157 only apply after a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. The Board acknowledges the 1997 and 1998 VA treatment records which indicate a tentative diagnosis of PTSD. However, the Veteran in this case was not awarded service connection (or denied compensation because the disability was not compensable) for any disabilities prior to February 2004. Thus, the provisions of 38 C.F.R. § 3.157 do not apply so as to enable either the 1997 or the 1998 VA treatment records to constitute an informal claim for benefits. The Board concludes that the date of claim here is February 23, 2004. To reiterate the statement of the law above, under 38 C.F.R. § 3.400(b)(2), the latter either of the date the claim was received (in this case, February 23, 2004) or the date upon which entitlement arose is the appropriate effective date. Currently, as granted herein, the effective date is February 23, 2004, which is the date the Veteran's claim was received for reasons explained above. The February 23, 2004 effective date currently assigned is the date the RO received the Veteran's request to reopen his claim of entitlement to service connection for PTSD. To the extent the Veteran is arguing the date on which entitlement arose pre-dated his current effective date, his claim must fail. Even if the date entitlement arose pre-dated the date of claim, under the law, the proper effective date is the latter of the two. See 38 C.F.R. § 3.400(b)(2). Resolving reasonable doubt in the Veteran's favor, the Board finds that the appropriate effective date for the grant of service connection for PTSD is February 23, 2004. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Veteran's claim here arises from his disagreement with the effective date assigned following the initial grant of service connection for PTSD. In Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Therefore, no further notice, beyond that afforded in the context of the Veteran's initial claim for service connection, is needed. The Board further finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA has obtained service treatment records, private treatment records, VA treatment records, and other records identified by the Veteran. With regard to the CUE aspect of this case, the Court has held that "as a matter of law, the VCAA is inapplicable to CUE claims." Sorakubo v. Principi, 16 Vet. App. 120, 122 (2002), citing Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). Therefore, to the extent that the Veteran's claim for an earlier effective date is based upon his allegation of CUE in the July 1998 rating decision, additional notification or development of the claim is not warranted. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the earlier effective date claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An earlier effective date of February 23, 2004 for the grant of service connection for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND In October 2008, the Veteran filed a claim seeking an annual clothing allowance payment. The RO denied the claim in a December 2008 decision. In February 2009, the Veteran filed a timely notice of disagreement (NOD), and the RO issued another decision in which it denied the claim in March 2009. The Veteran again filed a timely NOD in December 2009. An April 2010 Deferred Rating Decision authored by a Decision Review Officer contains directions to grant the claim for an annual clothing allowance payment and indicates that VACOLS had been updated to show a grant of the benefit. However, there is no indication in either the Veteran's claims file or in his virtual file that such a benefit was actually granted; as no rating decision or Statement of the Case (SOC) is of record with regard to the clothing allowance claim. As such, if the benefit has not in fact been granted, a SOC should be issued. Next, in the May 2008 rating decision that is on appeal, the RO also denied an increased rating in excess of 20 percent for diabetes mellitus with diabetic nephropathy and hypertensive vascular disease. The Veteran filed a timely NOD in November 2008. However, the Veteran has not been furnished an SOC which addresses the issue of entitlement to an increased rating for diabetes mellitus. In such cases, under judicial precedent, the appellate process was initiated by the NODs, and the appellant is entitled to an SOC on the issues. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the issues of entitlement to an annual clothing allowance payment and to an increased evaluation for diabetes mellitus must be remanded to the RO for additional action. Accordingly, the issues of entitlement to an annual clothing allowance payment and to an increased evaluation for diabetes mellitus are REMANDED for the following action: The RO should consider the issues of entitlement to an annual clothing allowance payment (to the extent that the claim has not been granted) and to a rating in excess of 20 percent for diabetes mellitus with diabetic nephropathy and hypertensive vascular disease; if the benefits sought cannot be granted, the RO should issue a statement of the case in accordance with applicable law and regulations. The Veteran, and his representative, should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the claim should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs