Citation Nr: 1414314 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 12-20 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date prior to December 11, 2007, for the grant of service connection for posttraumatic stress disorder (PTSD), claimed on the basis of whether there was clear and unmistakable error (CUE) in a July 1988 RO rating decision denying entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from July 1968 to January 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In February 2013, the Veteran testified before the undersigned at the RO. A transcript of the hearing is associated with the Veteran's Virtual VA electronic claims file. That file contains no other relevant evidence that is not also a part of the paper claims file. The Veterans Benefits Management System claims file contains no documents. FINDINGS OF FACT 1. In July 1988, the RO denied entitlement to service connection for PTSD. The Veteran did not appeal that decision and did not submit new and material evidence within the one year appeal period. 2. The July 1988 rating decision denying entitlement to service connection for PTSD did not contain an outcome determinative error in applying the law extant at that time to the facts that were before the adjudicator. 3. Following the issuance of the July 1988 rating decision, the Veteran first submitted a claim for service connection on December 11, 2007. CONCLUSION OF LAW The RO's July 1988 decision denying entitlement to service connection for PTSD was not clearly and unmistakably erroneous, and the requirements for an earlier effective date for the grant of service connection for PTSD prior to December 11, 2007, have not been met. 38 U.S.C.A. §§ 5101, 5109A, 5110, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.105, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). However, VA's duties to notify and assist are not applicable to CUE claims, and as discussed below, CUE is the basis for the Veteran's earlier effective date claim. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also Hines v. Principi, 18 Vet. App. 227, 235 (2004). Legal Criteria and Analysis Unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found, but cannot be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C.A. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following separation from service if the claim for compensation was received within one year of separation. 38 U.S.C.A. § 5110(b)(1). However, there is no evidence or argument in this case that a claim for entitlement to service connection for PTSD was filed within one year of the Veteran's January 1976 separation from service, and 38 U.S.C.A. § 5110(b)(1) is therefore inapplicable. In this case, the RO granted a claim for service connection for PTSD that was received on December 11, 2007. The RO had denied a previous claim for service connection for PTSD in a July 1988 rating decision. Generally, when granting entitlement to service connection for a disability in response to an application to reopen a claim that had previously been denied, VA cannot assign an effective date earlier than the date of receipt of the application to reopen. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(r). See also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) ("The earliest effective date for an award based on a veteran's request to reopen a final decision based on new and material evidence is generally the date that the application to reopen was filed"). There are exceptions to this general rule, but none are applicable in this case as shown below. A claim 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); 3.155 (2013). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). 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 Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). Additionally, in some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). In July 1988, the RO denied entitlement to service connection for PTSD. Although he was notified of this denial in a letter dated later that month, the Veteran did not appeal the determination and did not submit new and material evidence within the one year appeal period. Consequently, the denial became final. See 38 C.F.R. § 20.1103. See also King v. Shinseki, 23 Vet. App. 464, 466 (2010) ("Although the effective date of an award based on a claim reopened is generally the date of receipt of the application, if new and material evidence is received within one year after the date of mailing of an RO decision, it may be 'considered as having been filed in connection with the claim which was pending at the beginning of the appeal period' that prevents an initial determination from becoming final") (quoting 38 C.F.R. § 3.156(b)). The Veteran's next communication to the RO was a December 11, 2007, statement in support of claim (VA Form 21-4138) requesting service connection for PTSD. The RO accepted this communication as a claim and granted service connection for PTSD effective from December 11, 2007, which was the date of the application to reopen. As there was no communication or submission of evidence from the Veteran evidencing an intent to apply for benefits or identifying the benefits sought between the July 1988 denial and the December 11, 2007, application to reopen, an earlier effective date is not warranted based on a prior, pending, unadjudicated claim or submission of new and material evidence within the one year appeal period. Id. The Veteran has not alleged that he filed an appeal with the July 1988 rating decision, and he has not asserted that he filed an application to reopen the claim prior to December 11, 2007. His representative specifically stated during the February 2013 Board hearing that the Veteran understood that entitlement to an earlier effective date was not warranted on that basis. Instead, he confined his contentions to an allegation of CUE in the July 1988 rating decision. In addition, entitlement to service connection for PTSD was not based on a liberalizing VA law or issue, see 38 U.S.C.A. § 5110(g), 38 C.F.R. § 3.114, and an effective date is therefore not warranted on this basis, or on the basis of any other exception when granting entitlement to service connection for a disability in response to an application to reopen a claim that had previously been denied. Therefore, under the laws and regulations pertaining to effective dates, the December 11, 2007, date of the application to reopen that was granted is the appropriate effective date for the grant of entitlement to service connection for PTSD in this case. The preponderance of the evidence is therefore against a claim for entitlement to an earlier effective date based on these laws and regulations, and the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Nevertheless, CUE is the one exception to the finality doctrine discussed above. If the evidence establishes such CUE, the prior decision will be reversed or amended; a finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.105(a). In various written statements as well as the Board hearing, the Veteran and his representative claimed that there was CUE in the prior July 1988 denial of entitlement to service connection for PTSD. In determining whether a prior determination involves CUE, the 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)). 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. Generally, a finding of CUE requires that the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. 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 v. Brown, 6 Vet. App. 377 (1994). The Board notes that a claim of CUE 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 claimant 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). The Veteran has not met this burden, for the following reasons. At the time of the July 1988 rating decision, the evidence before the RO included of the Veteran's service treatment records, which did not contain any complaints, symptoms, treatment, or diagnoses of a psychiatric disability. There was a normal psychiatric separation examination report. The RO had also obtained the Veteran's service personnel records, which showed service in Vietnam from February 1969 to February 1970 as a light weapons infantryman and receipt of the Combat Infantryman Badge and a Purple Heart. In addition, there were January 1988 and February 1988 VA outpatient records showing previous treatment for readjustment counseling from 1982 to 1984. In those records, the Veteran had reported a considerable amount of combat that resulted in an intense posttraumatic reaction and continuing PTSD symptoms. It was also noted that he was given provisional diagnoses of PTSD, that he was previously treated at the Vet Center, and that he fit the description of posttraumatic stress disorder. The February 1988 VA outpatient record further shows that the Veteran participated in group and individual treatment from September 1985 to September 1987. There was no contact between the Veteran and VA from September 1987 to January 1988, when the Veteran's wife contacted VA, and the Veteran was seen in February 1988. The assessment was that it appeared that the Veteran had experienced symptoms of PTSD for which he had sought treatment through Vet Center counseling. While he had made progress, the Veteran appeared to be suffering and struggling with a lifelong process of stress recovery. The record at the time of the July 1988 rating decision also included a July 1988 VA examination report. The report shows that the Veteran told the examiner that he wished to withdraw his claim for PTSD. The examiner indicated that the Veteran did not wish to reveal his clinical history or any symptomatology as it pertained to a PTSD syndrome. He had been involved in support groups for Vietnam veterans. There was an implication that the Veteran suffered emotional symptomatology associated with his Vietnam wartime experience, but he preferred to reconcile this through his own efforts. The examiner again noted that the Veteran provided limited information. The diagnosis was presumed PTSD related to his Vietnam wartime experiences. The examiner noted that a review of the file had been conducted, and documentation of this diagnostic impression was shown in the limited available clinical records. The Board observes that the Prescott Vet Center is a community-based program which is part of VA and that VA is deemed to have constructive possession of any records from the Prescott Vet Center. Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992) and Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 85 (1997 ed.) for determining that Vet Center records are generated by VA agents or employees which are deemed within the Secretary's control and, thus, are deemed constructively of record). As such, the RO had constructive possession of the Veteran's Vet Center Records dated from June 1982 to April 1988 at the time of the July 1988 rating decision. A March 1988 Vet Center record shows that the Veteran's wife presented for a crisis session, as her husband was acting bizarrely and was preoccupied with spiritual issues. An April 1988 Vet Center record also indicates that the Veteran underwent psychiatric testing, the results of which were atypical and unusual for VA patients. There were no indications of psychosis; although the Veteran may well have experienced mild hypomanic episodes and was more than likely to experience mood swings in responding to stresses in his life. Test patterns were consistent with a cyclothymic personality. The Veteran was referred to home, and his wife was relieved. At the time of the July 1988 rating decision, the RO also had constructive possession of June1982 and September 1984 Vet Center records containing diagnoses and assessments of anxiety reaction, posttraumatic stress syndrome, dysthymia, depression, and alcohol abuse. The Veteran was known to have participated in a PTSD group. At the time of the RO's July 1988 rating decision, the Board notes that there were no specific regulations governing claims for PTSD. See 38 C.F.R. § 3.304 (1988); see also 58 F.R. 29109 (1993) (publishing a final rule, effective May 19, 1993, amending the regulations of 38 C.F.R. § 3.304 by adding a new paragraph (f) defining the extent of evidence required to establish service connection for PTSD). Rather, PTSD claims were decided under the general principles for establishing service connection, which required evidence establishing "that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein." 38 C.F.R. § 3.303(a) (1988). Moreover, the provisions of the current version of 38 U.S.C.A. § 1154(b) were promulgated under 38 U.S.C.A. § 354(b), which provided that, in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Administrator shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. (1988). Also pertinent, the provisions of 38 U.S.C.A. § 354(a) provided that, due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. (1990). In the July 1988 rating decision, the RO noted that the Veteran's service personnel records showed service in Vietnam as a light weapons infantryman, his participation in the Vietnam Counteroffensive Phase VI, TET 1969 and 1970, and his receipt of the Combat Infantryman Badge and Vietnam Combat Medal with Sixty Device. The rating decision also noted the receipt of the Purple Heart for a gunshot wound of the buttocks in June 1969, but indicated that this was not verified by the service records, and there had been no claim for this condition. The service records were negative for any chronic neuropsychiatric disease or disorder; however, there was a January 1976 notation of gastritis secondary to anxiety. A separation examination report further showed that a psychiatric examination was normal. A notation of January 1988 and February 1988 treatment records was made, and it was stated that they indicated the Veteran still had many problems related to his experiences as a combat veteran; however, no details regarding his claimed stressors were listed. The details of his June 1988 VA examination were accurately reported, and the RO noted a diagnosis of presumed PTSD. The RO noted that the Veteran did not respond to an RO development letter regarding PTSD. Thus, the RO determined that the Veteran failed to cooperate with the examiner in giving any history regarding stressors. The available evidence was insufficient to establish a diagnosis of PTSD, as the examiner had noted that this diagnoses was "presumed." This decision was signed by two rating specialists and one medical rating specialist. In the written statements and hearing testimony, the Veteran and his representative claimed that there was CUE in the July 1988 rating decision. In a September 2008 written statement, the Veteran's representative asserted that nothing had changed with regard to the Veteran's disability since 1982. In May 2009, the Veteran testified before a Decision Review Officer at the RO with regard to his unappealed claim for a higher rating for his PTSD. He stated that, in the past, he had a difficult time responding frankly and candidly in situations where someone in VA, who was a stranger, asked questions regarding war and his PTSD. In these situations, he was inclined to minimize or deny the existence of any debilitating or dysfunctional issues. He perceived the examiner in 1988 to be mocking him, and therefore, did not talk about his war experiences. From then on, he offered little or nothing that would qualify his PTSD experiences. In a May 2010 written statement, the Veteran's representative argued that a failure on the part of the Veteran to cooperate with the VA examiner was not sufficient to discount the award of the Purple Heart and Combat Infantryman Badge. In addition, she asserted that the lack of diagnosis of PTSD during the June 1988 VA examination was contrary to the opinion provided by the Veteran's VA psychologist in January 1988. She believed that the January 1988 record along with the records dated in 1982 were enough to meet the burden of proof. She questioned why, if the RO found the January 1988 diagnosis to be vague, it did not attempt to obtain a definitive diagnosis from the Veteran's VA psychologist. During the February 2013 Board hearing, the Veteran's representative questioned the RO's conclusion that a "presumed" diagnosis of PTSD was not a diagnosis. She also asserted that, if the diagnosis was unclear, the RO should have confirmed the diagnosis with the Veteran's treatment provider in 1988. The representative questioned how treatment for PTSD symptoms differed from treatment for a PTSD diagnosis. During the Board hearing, the Veteran indicated that he began group therapy in 1982 and continued with regular counselling through 1988 at Prescott Vet Center. He disagreed with the RO's reliance on the results of the June 1988 VA examination because it involved only a one-hour examination of the Veteran with a provider whom he had never met before. He also disagreed with the notation in the June 1988 VA examination that he ever wanted to withdraw his claim. He pointed out that only a small fraction of his VA records had been associated with the claims file and were reviewed by the RO prior to the July 1988 adjudication. The Veteran argued that the absence of these records constituted CUE. The Veteran's representative questioned why, if the RO could not obtain the Veteran's Vet Center records in 1988, the Veteran was not told to submit them. The Veteran further testified in February 2013 that he had been incapable of filing an appeal of his denial in July 1988 or a subsequent claim due to his emotional state. Furthermore, he found the June 1988 VA examiner to be condescending, dismissive, and adversarial. The above discussion of the evidence and arguments reflects that a finding of CUE in the July 1988 rating decision is not warranted. To the extent that the Veteran and his representative contend that the RO's failure to request a clarifying diagnosis from the Veteran's VA psychologist warrants a finding of CUE, such an argument must fail as a matter of law. Even assuming, without deciding, that the RO failed in its duty to assist by not seeking this clarification, "The requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim." Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2002). Thus, the argument that the RO's failure to obtain a clarification on this matter warrants a finding of CUE must be rejected. The Prescott Vet Center records dated from 1982 to June 1988 were constructively in VA's possession at the time of the July 1988 RO rating decision, see Bell, 2 Vet. App. at 613. However, none of these Vet Center records dated during the appeal period show a diagnosis of PTSD or a discussion of the Veteran's stressors. The evidence considered by the RO at the time of the July 1988 rating decision included records noting that he continued to experience PTSD symptoms, had been given a provisional diagnosis of PTSD, and fit the description of posttraumatic stress disorder. In the July 1988 decision, the RO found that this evidence, along with the report of the June 1988 VA examination, did not constitute a valid diagnosis of PTSD. A claim by the Veteran that the evidence, including the Vet Center records constructively present in July 1988, included enough certainty to show a diagnosis of PSTD constitutes a disagreement with how the evidence was weighed, which is not a valid basis for a finding of CUE. Likewise, the Veteran's assertion that he disagree with the RO's reliance on the June 1988 VA examination is a disagreement in how evidence was weighed. As noted above, the Board finds that the Vet Center records dated prior to the July 1988 rating decision were constructively in the RO's possession at that time, even though they were not associated with the claims file until 2009. However, the Veteran and his representative have not shown how the presence of these records would have manifestly changed the outcome of the Veteran's claim. The Vet Center records dated in 1982 and 1984 show treatment and diagnoses that were rendered several years prior to the time that the Veteran filed his VA claim in February 1988. The Veteran has failed to demonstrate why the nonreview of these records constitutes an error of law or fact or would manifestly change the outcome of the RO's decision that a diagnosis of PTSD was not shown several years later in July 1988. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Furthermore, the Vet Center records that are dated during or in close proximity to the appeal period, which ran from February 1988 to July 1988, contain no diagnosis of PTSD and, even if they did, any argument that this amounts to CUE would be a disagreement with how the evidence was weighed. Therefore, the physical absence of the Prescott Vet Center records from the claims file at the time of the July 1988 RO rating decision does not rise to the level of a finding of CUE. In written statements, the Veteran has acknowledged that he found the June 1988 VA examiner to be condescending and dismissive. As a result, he minimized his symptoms and war experiences and offered little to the examiner regarding his PTSD experiences. This lack of cooperation was noted in the July 1988 RO rating decision. However, as the Veteran acknowledges that he failed to cooperate at that time, there is no allegation that the RO misrepresented or misapplied the facts associated with the June 1988 VA examination report. The Veteran's representative asserted in the May 2010 written statement that the failure on the part of the Veteran to cooperate with the VA examiner did not discount the awards of a Purple Heart and a Combat Infantryman Badge. However, the Veteran's claim was denied in July 1988 on the basis of the lack of a diagnosis of PTSD and was not based upon the awards the Veteran received during service or his status as a combat veteran. For these reasons, the Board finds that the RO did not misapply the law extant at the time in denying entitlement to service connection for PTSD based on the facts before it. The Board reiterates that service connection could not have been granted in July 1988 without evidence of a current PTSD diagnosis. See 38 C.F.R. § 3.303 (1988). The Veteran has not shown an error of law or fact, to which reasonable minds could not differ, that would manifestly change the RO's conclusion in the July 1988 rating decision that a diagnosis of PTSD was not shown. The Board emphasizes that a claimant 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). The Board also notes that the Veteran disagreed with the statement contained in the June 1988 VA examination report and the July 1988 RO rating decision that he wished to withdraw his claim. However, no matter his statements to the VA examiner, the Veteran's claim was not withdrawn and was fully adjudicated in July 1988. The Veteran has also asserted that he failed to pursue an appeal of the July 1988 decision or raise an application to reopen prior to December 2007 because he was unable to pursue this claim due to his emotional state. He has stated that he was too angry with the first denial and refused to give VA another chance to deny his claim. The application of equitable tolling within the context of veterans law stems from Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453, 112 L.Ed.2d 435 (1990), wherein the United States Supreme Court (Supreme Court) held that equitable tolling may be applied to toll a statute of limitations "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." The Supreme Court held that there is a rebuttable presumption that all federal statutes of limitations contain an implied equitable tolling provision. Id. As it applies to the governing statute in this case, 38 U.S.C.A. § 5110, Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) held that equitable tolling, which may be applied to a statute of limitations, does not apply to section 5110 because it does not contain a statute of limitations, but merely prescribes when benefits may begin and provides for an earlier effective date under certain limited circumstances. The following year, Barrett v. Principi, 363 F.3d 1316 (2004) expanded equitable tolling to apply not only where the claimant has been "induced or tricked by his adversary's misconduct," but also where his or her "failure to file was the direct result of a mental illness that rendered him or her incapable of 'rational thought or deliberate decision making.'" As Barrett dealt with the statute of limitation for filing appeals to the Court from decisions of the Board under 38 U.S.C.A. § 7266, it did not reverse Andrews on the point that the effective dates prescribed by 38 U.S.C.A. § 5110 are not statutes of limitation. Therefore, the controlling case law, Andrews (Holly) v. Principi, 351 F.3d 1134 (Fed. Cir. 2003), is that equitable tolling does not apply to 38 U.S.C.A. § 5110. As the effective date established for the Veteran's acquired psychiatric disability was based on § 5110, the Board must continue to deny this appeal even with this additional consideration. Another, more recent decision of the Federal Circuit also addressed this issue, cited to Andrews as good law, and similarly concluded that equitable tolling is not an available remedy to an appellant under § 5110. See Butler v. Shinseki, 603 F.3d 922 (Fed. Cir. 2010) (per curiam). Accordingly, the Veteran's equitable tolling argument must fail on this basis because he is asking the Board to "waive the express statutory requirements for an earlier effective date," which it cannot do. See Edwards, 22 Vet. App. at 36- 37, quoting Andrews, 351 F.3d at 1138. Thus, the doctrine of equitable tolling is not for application in this case. Indeed, the Veteran has essentially argued that he did not file a notice of disagreement with the prior rating decision because of his emotional state, which caused him to be angry with VA and refuse to allow them to deny his claim again. Although the doctrine of equitable tolling is an evolving area of VA jurisprudence, current jurisprudence appears to indicate that the time period for filing a notice of disagreement is also not subject to equitable tolling. In Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1198 (2011), the Supreme Court affirmed that statutory jurisdictional requirements are not subject to equitable tolling exceptions created by courts. Rather, only claims processing rules without jurisdictional consequences are subject to equitable tolling. See also Bowles v. Russell, 551 U.S. 205 (2007). For the reasons set forth below, the Board concludes that the requirement that a claimant file a timely notice of disagreement is a jurisdictional predicate to the Board's adjudication of a matter. In this regard, the Board has jurisdiction over appeals from all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans and their dependents or survivors. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 20.101, 20.200 (2013). A claimant may initiate an appeal to the Board from an unfavorable decision by the Secretary by filing a notice of disagreement. 38 U.S.C.A. § 7105(a) (West 2002). The statute provides that the notice of disagreement "shall" be filed within one year of the mailing of notification of the unfavorable decision. 38 U.S.C.A. § 7105(b)(1) (West 2002). The statute further provides that, if the claimant does not file a notice of disagreement within the one-year period, the decision "shall become final." Id. If a timely notice of disagreement is filed, however, the claimant completes the appellate process by submitting a substantive appeal after a statement of the case is furnished in accordance with 38 U.S.C.A. § 7105(d)(3) (West 2002). In Percy v. Shinseki, 23 Vet. App 37 (2009), the Court noted that, although Congress used "permissive language" in the statute for filing a substantive appeal (38 U.S.C.A. § 7105(d)(3), the language used by Congress in enacting the statute for filing a notice of disagreement was "mandatory," indicating a clear intention to foreclose the Board's exercise of jurisdiction over a matter where a notice of disagreement had not been filed, but not where a substantive appeal had not been filed. Id. at 44, citing Act of Sept. 19, 1962, Pub. L. No. 87-666, 76 Stat. 553 (enacting both NOD and Substantive Appeal requirements). Indeed, the Court noted that "[t]he permissive language of section 7105(d)(3) stands in stark contrast to the statutory language mandating that claimants file a timely NOD: "notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination," and "[i]f no notice of disagreement is filed . . . within the prescribed period, the action or determination shall become final."). In light of the Court's discussion in Percy, the Board finds that the filing of a notice of disagreement is jurisdictional and thus not subject to the equitable tolling doctrine. Accordingly, for the reasons discussed above, the Board finds no basis upon which to assign an effective date earlier than December 11, 2007, based on the Veteran's implied equitable tolling arguments. Moreover, even assuming, arguendo, that equitable tolling was available to the Veteran, an earlier effective date would remain unwarranted. According to Barrett, mental illness could justify equitable tolling and the generalized standards should govern claims of mental incompetence. To obtain the benefit of equitable tolling, a Veteran must show that the failure to file was the direct result of a mental illness that rendered him incapable of "rational thought or deliberate decision making," or "incapable of handling [his] own affairs or unable to function [in] society." See Barrett v. Principi, 363 F.3d 1316 (2004), citing Melendez-Arroyo v. Cutler-Hammer de P.R., Co., 273 F.3d 30, 37 and Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 580. The Veteran has not alleged that this is the case, and his psychiatric records do not support such a finding. The Veteran stated that he made a deliberate decision not to appeal the July 1988 denial. His psychiatric records also show that he was seeking treatment for his disorder, and there was no evidence that he was incapable of handling his own affairs or functioning in society. Based on the foregoing, the Board finds that the Veteran's psychiatric disability in July 1988 did not render him incapable of rational thought or deliberate decision making, incapable of handling his own affairs, or unable to function in society. The findings do not rise to the high level of psychiatric impairment as required by Barrett. As such, equitable tolling, if it was available to the Veteran, would not be warranted. For the foregoing reasons, it cannot be said that the ROs denial of entitlement to service connection for PTSD in its July 1988 decision contained an outcome determinative error in applying the law extant at that time to the facts that were before the adjudicator. The claim alleging CUE in the July 1988 rating decision as a basis for entitlement to an effective date earlier than December 11, 2007, must therefore be denied. The benefit-of-the-doubt rule is not for application. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE claim because the nature of such a claim is that it involve more than a disagreement as to how the facts were weighed or evaluated). ORDER An effective date prior to December 11, 2007, for the grant of service connection for PTSD, claimed on the basis of whether there was CUE in a July 1988 rating, is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs