Citation Nr: 1425673 Decision Date: 06/06/14 Archive Date: 06/16/14 DOCKET NO. 10-48 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Whether there was clear and unmistakable error (CUE) in a July 2004 rating decision that denied service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to September 1975, and from December 1981 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, and a May 2010 rating decision of the Indianapolis, Indiana, RO. In June 2009 the Veteran executed a document appointing Ralph J. Bratch as his representative. In January 2014, the Veteran provided testimony before the undersigned at a videoconference hearing. He was assisted at the hearing by A.R., an attorney who is associated with Mr. Bratch. At the hearing, the Veteran executed a power of attorney document appointing Mr. R. as his representative. Subsequently, in February 2014, the Veteran executed a document once again appointing Mr. Bratch as his representative who is listed on the title page. The issues of entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder and for a total disability rating based on individual unemployability are being REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed July 28, 2004 rating decision denied service connection for PTSD. 2. The record does not establish that the correct pertinent facts, as they were known on July 28, 2004, were not before the RO, or that the RO incorrectly applied statutory or regulatory provisions extant at that time, such that the outcome of the claim would have been manifestly different but for the error. CONCLUSION OF LAW The final July 28, 2004 rating decision that denied service connection for PTSD does not contain CUE. 38 U.S.C.A. §§ 5109A, 5110, 7104, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.105(a), 3.160(d), 20.302, 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify claimants and assist them in developing evidence to substantiate claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). However, the provisions requiring notice and development do not apply to clear and unmistakable error claims, irrespective of whether the decision in question was issued by the RO or the Board. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001). The Veteran asserts there was CUE in the July 28, 2004 rating decision that denied service connection for PTSD. He did not appeal that decision and does not assert that he did. It is thus considered final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). Although the decision is final, it may be reversed if found to be based upon CUE. Where CUE is found in a prior rating decision, the prior decision will be reversed or revised, and, for the purposes of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal or revision of the prior decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a) (2013). (The Board notes that the Veteran subsequently reopened his claim of service connection for PTSD, and service connection for that disability was granted in the November 2008 rating decision on appeal, with a 30 percent initial rating assigned.) There is a three-pronged test to determine whether CUE was present in a prior determination. The criteria 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 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310 (1992). 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. If a claimant wants to reasonably raise CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. 40 (1993); Grover v. West, 12 Vet. App. 109 (1999); Daniels v. Gober, 10 Vet. App. 474 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); Damrel v. Brown, 6 Vet. App. 242 (1994); Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Historically, the Veteran filed an original application for entitlement to service connection for posttraumatic stress disorder in March 2002. Under the law extant in March 2002, establishing service connection for PTSD required (1) medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that in the claimed inservice stressor occurred. If the evidence establishes that the 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) (2002). The Veteran argues that the July 2004, rating decision that denied service connection for PTSD was clearly and unmistakably erroneous because the RO failed to provide him with a VA psychiatric examination before denying his claim. The Veteran filed his claim of service connection for PTSD in March 2002. The record at the time of the July 2004 rating decision contained private treatment records dated in 2001 showing that the Veteran had signs and symptoms of PTSD as well as of alcohol abuse/dependence. VA treatment records dated in 2001 show diagnoses of bipolar disorder, generalized anxiety disorder, and PTSD. The Veteran underwent a VA psychiatric examination in March 2003. Thus, a VA examination was actually provided at the time of that claim. The examiner diagnosed polysubstance abuse and anxiety disorder, not otherwise specified. He noted that the Veteran had stressors that meet the criteria for PTSD and that he complained of symptoms of PTSD. However, the examiner noted that the Veteran also had symptoms of polysubstance abuse and stated that it was difficult to make a diagnosis of PTSD with only limited contact with the Veteran. The RO then scheduled the Veteran for another VA psychiatric examination on June 23, 2004. A report of contact dated in May 2004 noted that the Veteran would be unable to keep the June 2004 appointment as he had just begun a new job and could not get time off; he requested an appointment in six months. The RO then scheduled another examination for July 2, 2004. A June 2004 report of contact noted that the Veteran would be unable to make the July 2004 appointment. He requested an examination in Fort Wayne, Indiana, as it was closer to his residence. A July 26, 2004 report of contact noted that the Veteran had not responded to telephone messages left on July 14, 2004, July 19, 2004, and July 26, 2004. On July 28, 2004, the RO denied the claim for service connection based on the record, finding that a diagnosis of PTSD was not confirmed. The RO noted that under 38 C.F.R. § 3.655 when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. The contention of Veteran and his representative that the RO erred in not waiting six months to schedule the Veteran for another VA examination is essentially a claim that the statutory or regulatory provisions extant at the time were incorrectly applied. The Board disagrees and finds instead that the RO's determination that the Veteran had not provided good cause for his failure to report for the scheduled examinations in June 2004 and July 2004 amounts to a weighing or evaluation of the facts, disagreement over which cannot constitute CUE. More significantly, the argument that further steps should have been taken to schedule another examination amounts to a dispute as to whether the RO properly fulfilled the duty to assist the Veteran with his claim, and case law makes clear that a breach of a duty to assist in the final decision being collaterally attacked cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002) Based on a review of the record, the Board finds the RO correctly applied the relevant laws and regulations in existence at the time of the July 2004 rating decision. Based on the evidence of record in July 2004, the RO concluded that the medical evidence of record did not show that a diagnosis of PTSD was appropriate. The rating decision's list of the relevant evidence considered therein included the VA and private treatment records that contained various psychiatric diagnoses, as well as the VA examination report. Thus, the correct facts were before the adjudicator. The RO's conclusions do not amount to legal error. The Veteran was informed of the decision and provided his appeal rights. To the extent that he may presently disagree with how the facts were weighed or evaluated by the RO in reaching its decision in July 2004, the Board notes that such disagreement alone is insufficient to constitute CUE. Russell, 3 Vet. App. at 310; Fugo, 6 Vet. App. at 40. In conclusion, the Board finds that the July 28, 2004 rating decision was reasonably supported by the evidence of record, correctly applied and considered prevailing legal authority, and was not undebatably erroneous. Furthermore, the RO, in July 2004, had before it the correct facts as they were known at the time, and any alleged breach of the duty to assist cannot constitute CUE. The Board fins that the RO decision was a plausible application of the extant legal provisions to the correct facts. The decision does not demonstrate error, such that reasonable minds cannot differ that a change in outcome is required. Therefore, the Veteran's request for revision of the July 28, 2004 rating decision based on CUE must be denied. ORDER The request for revision based on CUE of a final July 2004 rating decision that denied service connection for PTSD is denied. REMAND The Veteran seeks a higher initial rating for PTSD. In January 2014, the Veteran testified that his PTSD had become worse since he was last VA examined by in October 2008. As the evidence suggests a material change in the disability, a reexamination to determine the current severity of the disability is needed. Additionally, there are outstanding VA treatment records that may be relevant to the claim for increase and the claim for TDIU. Accordingly, these issues are REMANDED for the following actions: 1. Obtain VA treatment records of the Veteran from the Muncie, Indiana, VA outpatient clinic since August 2010. 2. Thereafter, afford the Veteran a VA psychiatric examination to determine the current severity of his posttraumatic stress disorder. The entire claims file, to include any electronic files, must be reviewed by the examiner. All signs and symptoms of the service-connected PTSD must be reported in detail (including all information necessary for rating the disability under Diagnostic Code 9411). The examiner must report all pertinent findings and assign a GAF score. The examiner must describe the impact of the Veteran's PTSD on his occupational and social functioning, and to specifically state whether PTSD precludes the Veteran from following and securing substantially gainful employment with consideration of his educational and vocational history. 3. Finally, readjudicate the claims for increased rating for PTSD and the claim for a TDIU under 38 C.F.R. § 4.16(a) or (b), whichever applies. If any benefit sought is denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs