Citation Nr: 1328734	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  13-05 843	)	DATE
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THE ISSUE

Whether the denial of entitlement to an effective date earlier than February 7, 2005, for the grant of service connection for posttraumatic stress disorder (PTSD) in a January 2011 decision by the Board of Veterans' Appeals (Board) constitutes clear and unmistakable error (CUE).  

(The issues of entitlement to service connection for a vestibular disorder and of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities are the subject of a separate decision issued simultaneously with this decision under a separate docket number.)


REPRESENTATION

Veteran represented by:  The American Legion



ATTORNEY FOR THE BOARD

K. Haddock, Associate Counsel 
INTRODUCTION

The Veteran had active service from August 1964 to August 1967.  

This matter is before the Board of Veterans' Appeals (Board) as an original action on the motion of the moving party alleging CUE in the January 2011 decision by the Board denying entitlement to an effective date earlier than February 7, 2005, for the grant of service connection for PTSD.  This motion is before the undersigned Veterans Law Judge, who has been designated to make the final disposition of the motion.  


FINDING OF FACT

In the January 2011 decision, the Board did not consider evidence favorable to the Veteran's claim and the failure to consider that evidence was outcome determinative.  


CONCLUSION OF LAW

The January 14, 2011, Board decision's failure to consider evidence favorable to the Veteran's claim was clear and unmistakable error; but for the error, an earlier effective date of November 15, 2004, was warranted for the grant of service connection for PTSD and would have been assigned.  38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 3.400, 20.1403 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  However, those duties are not applicable to motions for revision of a Board decision on the grounds of CUE.  Livesay v. Principi, 15 Vet. App. 165 (2001). 

Any party to a Board decision can make a motion to have the decision revised or reversed on the grounds of CUE.  38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400(a), 20.1401(b) (2012).  Clear and unmistakable error 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.  Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.  38 C.F.R. § 20.1403(a) (2012). 

A finding of CUE in a prior Board decision must be based on the record and the law that existed when that decision was made.  38 C.F.R. § 20.1403(b) (2012). 

To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made.  If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.  38 C.F.R. § 20.1403(c) (2012). 

The following examples of situations that are not clear and unmistakable error.  (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) VA's failure to fulfill the duty to assist; and (3) a disagreement as to how the facts were weighed or evaluated.  38 C.F.R. § 20.1403(d) (2012). 

If the evidence establishes CUE, an undebateable, outcome-determinative error, the prior decision must be reversed or revised, and the decision constituting reversal or revision has the same effect as if the decision had been made on the date of the prior decision.  38 U.S.C.A. § 7111 (West 2002 & Supp. 2012).

The Veteran has asserted that he originally filed his claim of entitlement to service connection for PTSD in November 2004 and that he mailed that claim by certified mail and received confirmation that the claim had been received.  He has asserted that in January 2005, after not receiving any information regarding his November 2004 claim, he contacted the Waco, Texas Regional Office (RO) to inquire as to the status of his claim.  He reported that at that time, he was informed that no claim for benefits had been received by VA.  In February 2005, the Veteran submitted a new claim of entitlement to service connection for PTSD.  In addition to his claim form, the Veteran also submitted a statement in which he reported that he had originally filed his claim of entitlement to service connection for PTSD in November 2004, but after being informed that the claim had not been received, he was resubmitting the claim.  

The Veteran was granted entitlement to service connection for PTSD in an October 2005 rating decision, effective February 7, 2005.  The Veteran disagreed with that effective date.  In support of his claim of entitlement to an earlier effective date, the Veteran submitted certified mail receipts which show that he mailed something via certified mail to the RO in Waco, Texas on November 12, 2004.  The receipt also shows that the Veteran paid for delivery confirmation.  The Veteran also submitted the delivery confirmation form showing that a certified mail letter was received and signed for at the RO in Waco, Texas on November 15, 2004.  

In the January 2011 decision, the Board denied the Veteran entitlement to an earlier effective date for the grant of service connection for PTSD based on a finding that there was no claim for service connection for PTSD received by the RO prior to February 7, 2005.  The Board specifically noted that there was no evidence of a formal of informal claim relating to a claim of service connection for PTSD prior to the February 7, 2005 claim.  The Board failed to consider both the Veteran's February 2005 statement that he was resubmitting his claim that he had previously submitted in November 2004 and the certified mail receipt and delivery confirmation form submitted by the Veteran.  

Failure to consider evidence that is favorable to the claim is clear error.  The Board finds that the failure to consider the evidence submitted by the Veteran was also outcome determinative.  Based on the certified mail receipt and the delivery confirmation form submitted by the Veteran, it is clear that the Veteran did in fact submit something to VA in November 2004.  However, there is absolutely nothing in the claims file that is date-stamped as having been received in November 2004.  Further, a review of the record shows that prior to the submission of his alleged claim in November 2004, the Veteran had not submitted anything to VA since June 1991.  Additionally, the Veteran stated in the statement accompanying his February 2005 claim that he was resubmitting the claim for service connection for PTSD that he had previously submitted in November 2004.  Furthermore, there is absolutely no reason to doubt the veracity of the Veteran's statements in this case and his statements are further supported by the fact that he took the time, and paid the extra cost, to send his mail to the RO in Waco, Texas by certified mail and specifically requested a delivery confirmation.

Additionally, the Board notes that based on the diagnosis of severe PTSD made at the August 2005 VA examination, it is clear that the Veteran's PTSD had been present at least as far back as November 2004.  

In sum, the Veteran reportedly sent a claim of entitlement to service connection for PTSD by certified mail to the RO in Waco, Texas on November 12, 2004, and received confirmation that the mail had been received and signed for at the RO on November 15, 2004.  The Veteran called to inquire as to the status of his claim a mere two months following the submission of his claim.  Upon finding out that a claim was not received, the Veteran immediately resubmitted his claim in February 2005 and clearly stated that he had previously submitted the claim in November 2004.  The Veteran's PTSD has been present since at least November 2004.  Based on this evidence, the Board finds that the Veteran submitted a claim of entitlement to service connection for PTSD that was received on November 15, 2004, and subsequently lost or misplaced.  

Therefore, the Board finds that the failure to consider the favorable evidence of record in the January 2011 Board decision was clear error and 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.  

Accordingly, the Board finds that entitlement to an effective date of November 15, 2004, the date shown on the return receipt form as the date of receipt of the Veteran's claim for service connection for PTSD, for the grant of service connection for PTSD is warranted.  38 C.F.R. § 3.400 (2012).  The evidence does not show any earlier date of claim and the Veteran has not alleged that he filed any earlier claim.


ORDER

There was CUE in the January 14, 2011, Board decision and that decision is amended to the extent that an effective date of November 15, 2004, but not earlier, for service connection for PTSD is granted.  



                       ____________________________________________
	Harvey P. Roberts
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs