Citation Nr: 1334690 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 13-15 629 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a July 2005 Board decision that denied the Veteran's claim of entitlement to an effective date prior to July 19, 1995, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Moving party represented by: The American Legion ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The moving party in this case, the Veteran, served on active duty from October 1971 to March 1973. In a July 2005 decision, the Board denied the Veteran's claim of entitlement to an effective date prior to July 19, 1995, for the grant of service connection for PTSD. At a November 2012 video conference hearing before the undersigned Veterans Law Judge, the moving party filed a motion with the Board to revise the July 2005 Board decision on the basis that the decision was clearly and unmistakably erroneous. This motion is before the undersigned Veterans Law Judge, who has been designated to make the final disposition of this motion for VA. It is also noted that the Board will issue a separate decision on the issue of entitlement to an effective date earlier than July 19, 1995, for the award of service connection for PTSD, for which an appeal to the Board was perfected by the Veteran in August 2008. FINDINGS OF FACT 1. In a decision dated in July 2005, the Board denied the Veteran's claim of entitlement to an effective date prior to July 19, 1995, for the grant of service connection for PTSD. 2. The record does not establish that any of the correct facts as they were known at the time were not before the Board in July 2005, or that the Board incorrectly applied statutory or regulatory provisions in effect at that time such that the outcome of the claim would have been manifestly different but for the error. CONCLUSION OF LAW The July 2005 Board decision, denying entitlement to an effective date prior to July 19, 1995, for the grant of service connection for PTSD, was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1403 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the Veteran's motion, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations as provided in the VCAA have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, in a claim of CUE, the duties to notify and assist are not applicable. Specifically, determinations as to the existence of CUE are based on the facts of record at the time of the decision challenged, such that no further factual development would be appropriate. 38 C.F.R. § 20.1411(c), (d); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). Principles of CUE Effective November 21, 1997, the provisions of Pub. L. No. 105-111, 111 Stat. 2271 (codified at 38 U.S.C.A. § 7111) permit challenges to decisions of the Board on the grounds of CUE. The final regulations amending the Rules of Practice before the Board were promulgated and became effective on February 12, 1999, providing for procedures to challenge prior Board decisions on the basis of CUE. 64 Fed. Reg. 2134 -2141 (1999) (codified at 38 C.F.R. § 20.1400 et. seq. (2009)). A final Board decision may be revised or reversed on the grounds of CUE by the Board on its own motion, or upon request of a moving party at any time after the decision is made. 38 U.S.C.A. §§ 5109A(a), 7111(a) and (c). It is apparent that Congress, in creating § 7111, intended VA to follow the established case law defining a viable claim of CUE. 64 Fed. Reg. 2134, 2137 (1999); Donovan v. West, 158 F.3d 1377, 1382-83 (Fed. Cir 1998). This case law is found primarily in the following precedent opinions of the United States Court of Appeals for Veterans Claims (Court): Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet. App. 162 (1994); Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Crippen v. Brown, 9 Vet. App. 412 (1996); Berger v. Brown, 10 Vet. App. 166 (1997); and Stallworth v. Nicholson, 20 Vet. App. 482 (2006). CUE is defined as 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). A review for CUE in a prior Board decision must be based on the record and the law as it existed when that decision was made. 38 C.F.R. § 20.1403(b). 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. 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). CUE does not include a change in medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision, VA's failure to fulfill the duty to assist, or a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e). Further, the doctrine of the favorable resolution of reasonable doubt is not applicable in determinations of whether a prior Board decision contains CUE. 38 C.F.R. § 20.1411(a). As a threshold matter, a claimant must plead CUE with particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. 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). Facts and Analysis The question before the Board is whether a July 2005 decision of the Board contained CUE and therefore should be revised or reversed. In the July 2005 decision, the Board denied the Veteran's claim of entitlement to an effective date prior to July 19, 1995, for the grant of service connection for PTSD. At a hearing before the undersigned in November 2012, the Veteran alleged that the Board incorrectly denied his claim and should have granted an effective date in 1987 because that was when he was initially diagnosed with PTSD while receiving treatment at the Memphis, Tennessee VA Medical Center (VAMC). The Veteran's representative requested the Board to focus on medical records from the Memphis VAMC for the period of 1986 to 1993, ensuring that the records were in the file. The Board in July 2005 denied the Veteran's claim of entitlement to an effective date prior to July 19, 1995, for the grant of service connection for PTSD, on the basis that the law, namely, 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii), was determinative of the outcome. The Board found that a rating decision in September 1994, which initially denied a claim of service connection for PTSD, was not appealed and thus final, and that the controlling law provided that the effective date for a grant of service connection based on receipt of new and material evidence following a final prior disallowance was the date of receipt of the application to reopen the claim or date entitlement arose, whichever was later. In this case, the Board in July 2005 found that the Veteran's application to reopen his claim for service connection for PTSD, which was received on July 19, 1995, was the proper effective date for the award of service connection for PTSD. After a careful review of the record, the Board finds that its July 2005 decision that denied the Veteran's earlier effective date claim was not clearly and unmistakably erroneous, as now claimed by the Veteran. The specific facts considered by the Board at the time of the July 2005 decision are as follows. On September 12, 1994, the RO denied the Veteran's claim for service-connection for an acquired psychiatric disability, to include PTSD. It is noted that the RO considered the claim to be of two separate issues: whether new and material evidence had been received to reopen a claim of service connection for an acquired psychiatric disorder, and entitlement to service connection for PTSD. The former issue, having been appealed to the Board, was the subject of a prior Board remand (in February 1994), and the latter issue was a new issue for adjudication by the RO. In the notice of the decision issued to the Veteran on September 19, 1994, the RO made the distinction between the two issues very clear and specifically informed the Veteran that if he disagreed with the decision denying service connection for PTSD, he must file a notice of disagreement (NOD), as explained in the attached form regarding his appellate rights. In order to initiate an appeal of a rating decision, the law provides that the Veteran has one year from the date that the RO mails its determination to file a NOD. See 38 C.F.R. § 20.302. In this case, the Veteran did not submit a statement or otherwise communicate in written form (as required by 38 C.F.R. § 20.201) to signal his dissatisfaction or disagreement with the September 1994 rating decision with respect to the denial of service connection for PTSD. Thus, the September 1994 rating decision became final by operation of law, except that the claim could be reopened if new and material evidence was thereafter received. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.156. On July 19, 1995, the Veteran submitted a statement, requesting that his claim for service connection for PTSD be reopened. He stated that he had been treated within the past 12 months for the claimed disorder at a VA facility, and referred specifically to a period of inpatient VA hospitalization from June 1995 to July 1995. He attached a VA Medical Record - Discharge Instructions relating to that hospitalization, which reflects diagnoses of schizophrenia and alcohol dependence. There is no indication in such record, or in a VA discharge summary of the hospitalization that was subsequently obtained, that the Veteran was diagnosed with or treated for PTSD. The Veteran's July 1995 application to reopen his claim for service connection for PTSD, as well as the attached VA medical evidence, was received within the one-year appeal period of the September 1994 rating decision, but it did not assert in any way the Veteran's disagreement with the rating decision. It is also noted that 38 C.F.R. § 3.400(q)(1)(i) provides that the effective date of an award of service connection, upon submission of new and material evidence that is received within the appeal period, will be as though the former decision had not been rendered. As previously noted, the medical evidence submitted by the Veteran in July 1995 was not new and material to the claim of service connection for PTSD, as it did not reflect a diagnosis of or show treatment for PTSD; thus, the September 1994 rating decision became final. After the September 1994 rating decision became final, the Veteran's claim was reopened on the basis of new and material evidence (by the Board in October 2000) and granted on the merits (by the RO in an August 2001 rating decision). Initially, the effective date for the award of service connection for PTSD was established as November 6, 1996, but in a subsequent rating decision in March 2003, the RO assigned an effective date of July 19, 1995. The Board in its July 2005 determination found the effective date of July 19, 1995 for the award of service connection for PTSD to be correct. In a current review of the past decision, the Board finds that the July 2005 decision correctly applied the relevant effective date provisions, and there was no earlier effective date that could have been assigned under the law. The award of service connection for PTSD was made based on new and material evidence received after the final September 1994 rating decision, and the law then in effect (i.e., at the time of the Board's July 2005 decision, as well as when the award was established) regarding the assignment of effective dates only permits the date of receipt of the application to reopen, or the date entitlement arose, whichever is later, to serve as the proper effective date. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). That proper effective date is July 19, 1995. In sum, the record does not establish that the Board incorrectly applied statutory or regulatory provisions in effect at that time such that the outcome of the claim would have been manifestly different but for the error. Moreover, the record does not establish that any of the correct facts, as they were known at the time, were not before the Board in July 2005. In that regard, the Board acknowledges the request of the Veteran's representative at the November 2012 hearing to ensure that all Memphis VAMC treatment records, particularly those from 1986 to 1993, were associated with the claims file and to consider them, as it was alleged that the Veteran was initially diagnosed with PTSD at that facility in 1987. A review of the claims file shows no evidence from the Memphis VAMC dated in 1987 that contains a diagnosis of PTSD, as alleged, and there is no clear evidence that the RO sought such records, if they in fact exist, or that the Veteran had requested the RO to obtain them in support of his PTSD claim. VA emergency room and hospital records from Chicago and Memphis, dated in 1986, 1988, and 1989, show treatment for anxiety disorder, personality disorder, polysubstance abuse including alcohol abuse, and paranoid ideation. In a VA summary from a hospital stay from November 1989 to December 1989, the Veteran's psychiatric history did not mention any treatment at VA for PTSD. The record shows that Veteran initially made written and telephonic statements in March 1993 and September 1993 to the effect that he was hospitalized at the VA in March 1993 for PTSD and that his "current treatment team" felt he was suffering PTSD. (A VA hospital summary in April 1993, however, does not show a diagnosis of PTSD, but does indicate the Veteran sought "help for what he [the Veteran] termed PTSD.") Further, at a December 2004 Board hearing, the Veteran testified that he was first told by a doctor that he had PTSD during service in 1972, but he did not mention a diagnosis of PTSD in 1987. The foregoing evidence demonstrates that the correct facts, as they were known at the time of the Board's July 2005 decision, were before the Board for consideration, and that a VA diagnosis of PTSD as early as 1987 is not more than an allegation raised in connection with the Veteran's most recent efforts to obtain an earlier effective date for the award of his service connected PTSD. As to any allegation that the record as it stood in 2005 was not properly developed, it is emphasized that a failure in the duty to assist, such as by not obtaining specific records of the Veteran's diagnosis and/or treatment of PTSD, is not a valid basis for finding CUE. 38 C.F.R. § 20.1403(d). In conclusion, as the Board in July 2005 considered the correct facts and correctly applied the relevant law regarding effective dates to the facts, the Board's decision denying an earlier effective date for the grant of service connection for PTSD did not contain clear and unmistakable error. ORDER As the Board's July 2005 decision, which denied the Veteran's claim of entitlement to an effective date prior to July 19, 1995, for the grant of service connection for PTSD, was not clearly and unmistakably erroneous, the motion for revision or reversal of that decision is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs