Citation Nr: 1322067 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-35 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than October 7, 2005, for the grant of entitlement to service connection for PTSD, to include on the basis that failure to grant service connection for this disability in an April 8, 1994, rating decision constituted clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active military service from July 1960 to March 1969. The Veteran's decorations for his active service include a Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that granted service connection for PTSD with an evaluation of 30 percent, effective October 7, 2005. During the pendency of this appeal, in a March 2012 Decision Review Officer decision, the disability rating for PTSD was increased from 30 to 50 percent, effective October 7, 2005. This action did not satisfy the Veteran's appeal. A Central Office hearing was held in Washington, D.C., in March 2012 before the undersigned Veterans Law Judge, and a copy of the hearing transcript has been added to the record. When this case was previously before the Board in May 2012, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On September 22, 1993, the Veteran filed a claim for service connection for PTSD. That claim was denied in an April 1994 rating decision. The Veteran did not appeal that decision. 2. At the time of the April 1994 rating decision, it was factually ascertainable to adjudicators that the Veteran had served in combat in Vietnam, had claimed stressors consistent with the circumstances of his service, and had a diagnosis of PTSD which was linked to the claimed combat stressors of active duty. CONCLUSIONS OF LAW 1. The April 1994 rating decision that denied entitlement to service connection for PTSD is final, but was clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (1997); 38 C.F.R. §§ 3.104, 3.105 (2012). 2. The criteria for an earlier effective date of September 22, 1993, but not earlier, for the grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 1101, 5103, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties 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). With regard to the Veteran's claim for CUE in the April 1994 rating decision, since the Board has found that CUE existed, the entire benefit decided on appeal herein has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). CUE Claim The Veteran asserts that he is entitled to an effective date earlier than October 7, 2005, for his grant of service connection for his PTSD. More specifically, he alleges that the RO committed CUE in not granting his original claim for service connection for PTSD in the April 1994 rating decision. He contends that there was evidence in the claims file to indicate he had served in combat and he had a diagnosis of PTSD linked to service. Because the Veteran did not appeal the April 1994 RO decision within one year of receiving notification of the denial of the claim, that decision became final. The Board notes the case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on CUE, as the Veteran has done here. The Court has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination. First, 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. Second, the error must be 'undebatable' and of the sort 'which, had it not been made, would have manifestly changed the outcome at the time it was made.' Third, a determination that there was clear and unmistakable error must be based on the record and the 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, 313-14 (1992) (en banc)). CUE is a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). In this case, the Veteran's appeal is primarily based upon the fact that he served in combat during active duty when he was stationed in Vietnam. See e.g., March 2012 hearing transcript. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); 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. 38 C.F.R. § 3.304(f) (1997). Furthermore, if the Veteran contends that he was exposed to combat and his claimed stressor is related to combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with circumstances of the Veteran's service, his stressors will be conceded. Id. The record confirms that the Veteran had service in Vietnam during the Vietnam War. His awards and decorations included a Purple Heart Medal and Combat Infantry Badge. In September 1993, the Veteran submitted a claim for service connection for PTSD. In a rating decision dated in April 1994, the RO denied the Veteran's claim for service connection for PTSD. The RO found that the Veteran did not have evidence of combat service; specifically, the RO stated that the Veteran had not received a Purple Heart or Combat Infantry Badge. Therefore, the RO denied entitlement to service connection for PTSD. The RO notified the appellant of the denial of his claim and the Veteran failed to file a timely appeal of the claim. In October 2005, the Veteran submitted a statement to reopen his previously denied claim of service connection for PTSD. In a June 2008 rating decision the RO granted the Veteran's claim, noting verification of a combat stressor as personnel records showed the receipt of the Purple Heart Medal and Combat Infantry Badge. The Board notes that in the March 2012 hearing, the Veteran's representative asserted entitlement to an earlier effective date for the grant of entitlement to service connection for PTSD on the basis of CUE in the April 1994 rating decision that denied entitlement to service connection for PTSD. In a December 2012 supplemental statement of the case, the RO determined that the April 1994 rating decision that denied service connection for PTSD was not clearly and unmistakably erroneous. With regard to the effective date for service connection, the RO noted that the April 1994 rating decision was unappealed and became final. Accordingly, the RO assigned an effective date in October 2005, when the Veteran's application to reopen the claim for service connection for PTSD was received. With regard to the Veteran's personnel file, it appears the notation of receipt of the Purple Heart Medal and Combat Infantry Badge was in the file at the time of the April 1994 rating decision. Accordingly, the following facts were before the RO in April 1994: (1) the Veteran served in combat in Vietnam during the Vietnam War, (2) the Veteran's statements pertaining to what he experienced in-service were consistent with the circumstances and conditions of his service, and there is no evidence to the contrary, and (3) the Veteran was diagnosed with PTSD in a May 1993 VA examination report. Therefore, the Board finds that the RO's April 1994 rating decision denying service connection for PTSD because there was no evidence the Veteran served in combat and his stressors could not otherwise be verified was clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §3.105 (2012); Damrel, supra; Fugo, supra; Russell, supra. Therefore, because of the CUE in the RO's April 1994 rating decision, the Board finds that the original date the Veteran filed his claim for service connection in order to be the correct effective date. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). Claim is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32 (1998); Servello v. Derwinski, 3 Vet. App. 196 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2012). In sum, the Board finds that on September 9, 1993, when the Veteran filed his initial claim for service connection for PTSD, the Veteran had actual evidence of combat service, stressors consistent with his service, and had been diagnosed with PTSD associated with the claimed combat stressors. Thus, the Board finds that the correct retroactive effective date for service connection for PTSD is September 9, 1993, the date of that initial claim. ORDER The April 1994 rating decision denial of entitlement to service connection for PTSD was based upon clear and unmistakable error; and as such, an effective date for the grant of service connection for PTSD of September 9, 1993, but no earlier, is granted. REMAND Regarding the claim for an increased rating for PTSD, the RO's implementation of the Board's award of an earlier effective date of service connection will require rating the disability for the period prior to October 2005 in the first instance. As such action will have impact on the increased initial rating claim; appellate review of the claim for increase must be deferred pending the RO's initial consideration. Accordingly, the case is REMANDED for the following action: The issue of entitlement to an initial disability rating in excess of 50 percent for PTSD should be readjudicated, to include the assignment of the initial rating the Veteran's PTSD from September 1993. If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case (that explains in detail why the benefit sought is not warranted) and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs