Citation Nr: 1324273 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-37 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date earlier than August 11, 2004 for the grant of service connection for chronic posttraumatic stress disorder (PTSD) and major depression with mood-incongruent psychotic features, to include on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to September 1970. He received the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) from September 2006 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In the September 2006 decision, the RO granted service connection for chronic PTSD and major depression with mood-incongruent psychotic features, effective August 11, 2004. In the March 2008 decision, the RO denied entitlement to an effective date earlier than August 11, 2004 for the grant of service connection for chronic PTSD and major depression with mood-incongruent psychotic features on the basis of CUE. The Veteran testified before the undersigned at an April 2013 videoconference hearing. A transcript of that hearing has been associated with his claims folder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. FINDINGS OF FACT 1. The Veteran's initial claim of service connection for a psychiatric disability was received by VA on March 2, 1998; this claim was denied in a March 1999 rating decision as there was no medical evidence that a psychiatric disability had been diagnosed; the Veteran was not provided notice of this decision at his last address of record and the decision did not become final. 2. Entitlement to service connection for a psychiatric disability arose on March 2, 1998. CONCLUSION OF LAW The criteria for an effective date of March 2, 1998 for the grant of service connection for chronic PTSD and major depression with mood-incongruent psychotic features have been met. 38 U.S.C.A. §§ 1110, 5101(a), 5104(a), 5107(b), 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(p), 3.104, 3.151(a), 3.155(a), 3.303, 3.304(f), 3.309(a), 3.384, 3.400, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The appeal for an earlier effective date for the grant of service connection for PTSD and major depression with mood-incongruent psychotic features arises from the Veteran's disagreement with the effective date assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's April 2013 hearing, the undersigned identified the issue on appeal. The Veteran provided testimony as to the history of his psychiatric disability and the treatment received for the disability and he explained why he believed an earlier effective date for the grant of service connection for the disability was warranted (including why he believed there was CUE in a March 1999 rating decision). Also, he has submitted additional evidence during the course of the appeal. Thus, he has demonstrated actual knowledge of the ability to identify and submit additional relevant evidence. The duties imposed by Bryant were thereby met. VA obtained the Veteran's service treatment records, relevant service personnel records, and all of the identified relevant post-service VA treatment records and private medical records. In addition, the Veteran was afforded a VA examination for his claimed psychiatric disability. There is no other reported relevant evidence that remains outstanding, nor is there any indication of the need for additional examinations or opinions. Further assistance is unlikely to assist the Veteran in substantiating entitlement to an earlier effective date. Analysis Generally, 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 the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992); Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim. See 38 C.F.R. § 3.155(a). 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. 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. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A claim/application is defined as 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); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999) (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 5109A (West 2002), 38 C.F.R. § 3.105(a) (2012). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has established a three-pronged test, each of which must be met before CUE is established: either (1) the correct facts, as they were known at the time, were not before the adjudicator (i.e. more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be "undebatable" and of the sort "which had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)). In order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (including psychoses, such as psychotic disorder not otherwise specified (NOS)) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a), 3.384. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The sufficiency of the stressor which served as the basis for a diagnosis of PTSD is presumed. Cohen, 10 Vet. App. at 144. Nevertheless, credible evidence that the claimed in-service stressor actually occurred is still required. 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The current effective date for the grant of service connection for PTSD and major depression with mood-incongruent psychotic features is August 11, 2004, the date that an apparent petition to reopen the claim of service connection for a psychiatric disability was received by VA. In March 1998, the Veteran submitted a letter to the RO in which he stated that he wished to apply for PTSD. This letter was received by the RO on March 2, 1998. As this letter sufficiently identified the benefit sought, it constitutes an informal claim of service connection for a psychiatric disability. A formal claim of service connection for PTSD (VA Form 21-526) was subsequently received in April 1998. Thus, the formal claim is considered to have been filed as of the date of receipt of the informal claim (i.e. March 2, 1998). See 38 C.F.R. § 3.155(a). The RO denied the Veteran's initial March 1998 claim of service connection for PTSD in a March 1999 rating decision as there was no medical evidence that he had been diagnosed as having the disability. Neither a notice of disagreement nor new and material evidence was received within one year of notification of this rating decision. However, the Veteran has claimed on several occasions that he did not receive any notice of the March 1999 decision because he was incarcerated at the time of the decision. In a March 2008 statement (VA Form 21-4138), he contended that he had notified VA that his address had changed. In this regard, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). An allegation of non-receipt, by itself, is insufficient to rebut the presumption of regularity. Id. Rather, the Veteran bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. Clarke v. Nicholson, 21 Vet. App. 130 (2006). Once the presumption of regularity has been rebutted, the burden shifts to VA to show that regular mailing practices were followed in mailing the document in question in accordance with applicable laws and regulations, or that the appellant actually received the notice. Crain v. Principi, 17 Vet. App. 182, 186 (2003). The Veteran provided a "Highway 21" mailing address in Angie, Louisiana on his April 1998 VA Form 21-526. A May 1998 letter which was sent to this address was returned as undeliverable because the address was insufficient. There is a notation on the envelope that was returned which reflects that the letter was returned because a "Doc" number was required. The Veteran, his senators, and congressman all subsequently submitted documents to VA on which the Veteran's address was noted. These addresses were slightly different than the one which had been provided on the April 1998 VA Form 21-526 in that they included "W-1" and "W.C.I. Wind # 1." following the "Highway 21" address. In August 1998, a letter was sent to Veteran's new address of record and was not returned as undeliverable. Also, he has acknowledged that he received this letter. He was asked to complete a questionnaire concerning his claimed in service stressors by way of an October 2008 letter. This letter was sent to the initial address which had been provided on the April 1998 VA Form 21-526. Although this letter was not returned as undeliverable, the Veteran has claimed that he did not receive this letter. The only other letters sent by VA of which he was aware were those that were sent to his representatives in Congress. The March 1999 rating decision which notified the Veteran of the denial of service connection for PTSD was sent to the address which had initially been provided on the April 1998 VA Form 21-526. The Court has held that VA's use of an incorrect address constitutes the clear evidence needed to rebut the presumption that it properly notified a veteran. See Fluker v. Brown, 5. Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993). As the March 1999 decision was not sent the Veteran's latest address of record, the May 1998 letter which was sent to the initial address provided by the Veteran was returned as undeliverable, he has only acknowledged receipt of letters which were sent to his new address of record and his representative in Congress, and he has claimed that he did not receive notice of the March 1999 rating decision, the Board finds that the presumption of regularity has been rebutted. Moreover, the evidence reflects that the regular mailing practices were not followed in mailing the decision and there is no evidence that the Veteran actually received the decision. Hence, because the Veteran did not receive notice of the March 1999 decision, that decision did not become final as to the denial of service connection for PTSD. See 38 U.S.C.A. § 5104(a) (Secretary to provide to each VA-benefits claimant timely notice of any VA-benefits adjudication decision accompanied by "an explanation of the procedure for obtaining review of the decision"); 38 C.F.R. §§ 3.104, 20.1103. In the September 2006 rating decision, the RO granted service connection for chronic PTSD and major depression with mood-incongruent psychotic features. The current appeal originates from this decision. As the March 1999 rating decision did not become final and the September 2006 decision was timely appealed, the Veteran's initial March 1998 claim of service connection for a psychiatric disability remained pending at the time of the September 2006 rating decision which granted service connection for that disability. Furthermore, the Veteran's DD 214 and service personnel records indicate that he served in Vietnam from October 1969 to July 1970 and that he engaged in combat, as he received the Combat Action Ribbon.. In support of his claim of service connection for PTSD, medical records were obtained which reflected various psychiatric diagnoses, including PTSD and psychotic disorder NOS. Additionally, the Veteran was afforded a VA psychiatric examination in August 2006 and was diagnosed as having chronic PTSD and major depression with mood -incongruent psychotic features. The diagnosis of PTSD was based upon reported combat stressors in service and psychiatric symptoms in the years since service. Also, the psychologist who conducted the examination opined that the Veteran's depression and psychosis were secondary to his PTSD. The Veteran is competent to report symptoms of a psychiatric disability as well as a continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, there is nothing to explicitly contradict his reports and they are generally consistent with the evidence of record. Therefore, his reports of psychiatric symptoms since service are deemed credible. As the Veteran was diagnosed as having a psychiatric disability (including PTSD and a psychosis) and he reported persistent psychiatric symptoms ever since in-service combat stressors, he met the criteria for service connection for a psychiatric disability prior to his March 2, 1998 claim of service connection for that disability. There is no evidence of any unadjudicated formal or informal claim of service connection for a psychiatric disability prior to March 2, 1998. Since entitlement arose prior to the claim, the proper effective date for the grant of service connection is March 2, 1998. ORDER Entitlement to an effective date of March 2, 1998 for the grant of service connection for chronic PTSD and major depression with mood-incongruent psychotic features is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs