Citation Nr: 1454190	
Decision Date: 12/09/14    Archive Date: 12/16/14

DOCKET NO.  12-27 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Whether a February 2011 RO decision, which assigned an effective date of October 15, 2010 for the grant of service connection for posttraumatic stress disorder, was clearly and unmistakably erroneous (CUE).  

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Robert C. Brown, Jr., Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel


INTRODUCTION

The Veteran served on active duty from October 1966 to October 1968.    

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of April 2012 and November 2012 of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA).  The April 2012 decision denied the claim for a TDIU; the November 2012 decision denied the CUE claim.  

The Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge in June 2013.  A transcript of the hearing is in the Veteran's file. 


FINDINGS OF FACT

1.  VA changed its regulations regarding the verification of stressors in PTSD claims effective July 13, 2010. 

2.  As of that date, the evidence indicated that the Veteran suffered from PTSD related to stressors that occurred during service in the Republic of Vietnam.

3.  In a February 2011 rating decision granting service connection for PTSD, the RO assigned an effective date of October 15, 2010.  This rating decision did not correctly apply the regulations regarding effective dates in effect at that time.  

4.  Were it not for this error, an effective date of July 13, 2010, for the grant of service connection for PTSD would have been warranted.  

5.  The Veteran is service-connected for 6 disabilities; he has a combined rating of 90 percent, and at least one disability rated at 40 percent or higher.  

6.  The Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.   


CONCLUSIONS OF LAW

1.  The criteria for a finding of CUE in the February 2011 rating decision that assigned an effective date of October 15, 2010 for the grant of service connection for PTSD have been met; an earlier effective date of July 13, 2010 is warranted.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.104, 3.105, 3.114, 3.304, 3.400 (2014).  

2.  The criteria for a TDIU have been met.  38 U.S.C.A. §§ 1154, 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  CUE Claim

The Veteran seeks an earlier effective date for the grant of service connection for PTSD.  He contends that the effective date should be July 13, 2010, the date that the regulation regarding service connection for PTSD claims was changed.  For the reasons that follow, his claim shall be granted.  

Legal Framework

Generally, once a decision becomes final, it may only be revised by a showing of clear and unmistakable error (CUE).  See 38 C.F.R. §§ 3.104, 3.105.  CUE is recognized to be a very specific and rare kind of error of fact or law that compels the undebatable conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error.  Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 

To establish CUE, a claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated.  Eddy v. Brown, 9 Vet. App. 52 (1996); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.) (expressly holding that in order to prove the existence of clear and unmistakable error, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision).  

A three-pronged test determines whether there was CUE in a prior final decision.  First, "[e]ither 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 Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)).

Where evidence establishes CUE, the prior decision will be reversed or amended.  38 C.F.R. § 3.105(a).  For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE had the same effect as if the corrected decision had been made on the date of the reversed decision.  Id.

Unless specifically provided otherwise in the statute, the effective date of an award based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

An exception to the effective date rule arises in cases where an award of compensation is granted pursuant to a liberalizing law.  38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a).  Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement.  These provisions apply to original and reopened claims. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). 

In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue.  38 C.F.R. § 3.114(a).  

Service connection for posttraumatic stress disorder 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).

The regulation pertaining to PTSD was amended in 2010.  38 C.F.R. § 3.304(f)(3) no longer requires the verification of an in-service stressor if it involves "fear of hostile military or terrorist activity."  Rather, lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations.  The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor.  Id.  The liberalizing criteria contained in the new § 3.304(f)(3) became effective on July 13, 2010.

Facts and analysis

The Veteran sought service connection for PTSD in July 2002; the RO denied his claim in an August 2002 rating decision.  It concluded that, though the Veteran was diagnosed as suffering from PTSD, his claimed stressors had not been confirmed.  

The Veteran sought to reopen his claim in August 2003.  He submitted an October 2002 private treatment record reflecting that he was diagnosed as suffering from PTSD that was related to his experience in Vietnam.  Finding that new and material evidence had not been submitted, the RO denied his claim in March 2004.  The Veteran did not appeal this decision, and it is final.  

The Veteran filed a claim to reopen his previously denied claim for service connection for PTSD that the RO received on October 15, 2010.  In a February 2011 rating decision, in light of the recent change to VA regulations, the RO granted the Veteran's claim for service connection, assigning an effective date of October 15, 2010, the date of his claim.  The Veteran did not file a notice of disagreement with the rating assigned or the effective date.  

In September 2012, the Veteran filed the CUE claim at issue here.  He contended that the effective date for the grant of service connection should be the date the liberalizing regulation took effect, not the date of his claim.  

Applying the three prong test to the situation here, each prong is met.  First, the RO applied the statutory provisions incorrectly.  The Veteran was eligible for service connection for PTSD as of the effective date of the liberalization of 38 C.F.R. § 3.304.  At that time, the Veteran was diagnosed as suffering from PTSD related to his in-service experience in Vietnam.  The change to the regulation governing PTSD squarely covered the Veteran's circumstances, and it was indeed this change that the RO cited in its February 2011 decision granting service connection.  

Second, this error is undebatable.  While the RO concluded that the changes to 38 C.F.R. § 3.304 were not liberalizing, the Board disagrees.  Had the RO properly applied the provisions of 38 C.F.R. § 3.114 regarding effective dates following the implementation of the change to the PTSD regulations, it would have assigned the effective date as of the date of the regulation change.  

Finally, this determination is based on the record and law that existed at the time of the February 2011 decision.  The evidence shows that the Veteran met the criteria for service connection for PTSD as of the July 2010 change to VA's PTSD regulation.  Further, the current version 38 C.F.R. § 3.114 was in place at the time of the February 2011 decision.  

In summary, the February 2011 rating decision that assigned an effective date of October 15, 2010 for the grant of service connection for PTSD is final.  That decision, however, contains clear and unmistakable error.  A revision of that decision to grant an effective date of July 13, 2010 is warranted.  

II.  TDIU

A TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16.  

The Veteran is currently service-connected for 6 disabilities: PTSD, rated as 70 percent disabling; bilateral cataracts, rated as 30 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; urinary incontinence, rated as 20 percent disabling; and peripheral neuropathy of the bilateral lower extremities, rated as 10 percent disabling for each extremity.  The Veteran meets the schedular criteria for a TDIU.  

The evidence also shows that the Veteran is not currently working, and that he has not worked since 2007.  

Finally, the evidence also shows that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.  A January 2013 examination from J.W.E., MD, concluded that the combination of the Veteran's service-connected disabilities "have rendered [him] unemployable."  

The Board acknowledges that a series of VA examinations conducted in 2011 determined that his disabilities did not render him unemployable.  However, as these examinations considered each disability individually and did not consider the combined effects of his disabilities, they are of less probative value than the January 2013 private examination.  

The Veteran meets the schedular criteria for a TDIU, and the evidence indicates that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation.  A TDIU is warranted.  


ORDER

The motion to revise the February 2011 rating decision, which assigned an effective date of October 15, 2010 for the grant of service connection for PTSD on the basis of clear and unmistakable error is granted; an effective date of July 13, 2010 is granted.  

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted.  




____________________________________________
M. N. HYLAND 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs