Citation Nr: 1431325 Decision Date: 07/11/14 Archive Date: 07/15/14 DOCKET NO. 07-28 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether clear and unmistakable error (CUE) was made in the rating decision of May 30, 2002, which failed to assign an effective date of October 15, 1993, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In a July 2009 decision, the Board dismissed the Veteran's CUE motion. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a Memorandum Decision dated June 29, 2011, the Court vacated the Board's decision and remanded the case. The Veteran's CUE motion was subsequently denied by the Board in a February 2012 decision. The Veteran appealed the Board's February 2012 decision to the Court. In a Memorandum Decision dated December 5, 2013, the Court vacated the Board's decision and remanded the case. The case is once again before the Board. In the above-mentioned February 2012 decision, the Board also denied the issue of whether there was CUE in the failure of the May 2002 rating decision to adjudicate the issue of entitlement to service connection for alcohol abuse as secondary to PTSD. Since the Court affirmed this portion of the Board's decision in December 2013, the issue is no longer in appellate status. FINDING OF FACT The May 2002 rating decision that granted service connection for PTSD and assigned an effective date of August 30, 2000 involved clear and unmistakable error. CONCLUSION OF LAW The May 2002 rating decision wherein the RO granted service connection for PTSD and assigned an effective date of August 30, 2000 contained CUE. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.156(c) (2002) § 3.105(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that the RO committed CUE in its May 2002 rating decision by failing to award an effective date of October 15, 1993 for the grant of service connection for PTSD. For the reasons set forth below, the Board agrees. I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board notes, however, that the Veteran's motion of CUE is not subject to the provisions of VCAA. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001)(holding there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions.') Moreover, as the Veteran's motion is being granted, the Board finds that no further notification or development action is necessary in this case. II. Factual Background In October 1993, the Veteran filed a claim seeking service connection for PTSD. While he underwent a VA examination which diagnosed PTSD and documented several in-service stressors from his service in the Republic of Vietnam, the RO denied the Veteran's claim in an August 1994 rating decision. In August 2000, the Veteran submitted a statement requesting reconsideration of his claim for PTSD. In support of his claim he submitted a VA PTSD information form and statements describing his in-service stressors. The RO subsequently obtained a history of the Veteran's unit while in Vietnam and relevant VA treatment records were associated with his claims file. In a May 2002 rating decision, the RO reopened the previously denied claim and granted service connection for PTSD. An effective date of August 31, 2000 was assigned to reflect the date of the Veteran's claim to reopen. While the RO's decision to grant the Veteran's claim was based on VA medical records, VA examinations, and the Veteran's unit history, the RO did not specifically discuss the evidentiary basis for reopening the claim. The Court has noted that the May 2002 rating decision is final. See the December 2013 Memorandum Decision, page 2. Currently, the Veteran contends that there was CUE in the RO's May 2002 decision that assigned an effective date of August 31, 2000 for the grant of service connection for PTSD. Specifically, the Veteran argues that "the RO failed to apply 38 C.F.R. § 3.156(c) and § 3.400(q)(2) to the claim and that, had the RO applied those provisions, an earlier effective date would have been warranted in light of 'supplemental service records.'" See, e.g., the December 2013 Memorandum Decision, page 2. III. Memorandum Decisions As noted, this case has been the subject of two Memorandum Decisions from the Court. Specifically, in June 2011, the Court ruled that the Veteran had "clearly and specifically set forth his allegations and is entitled to an adjudication of his CUE motion on its merits." See the July 2011 Memorandum Decision, page 7. As a result, the Board's July 2009 decision dismissing the Veteran's CUE motion was reversed and the decision vacated. In a May 2012 decision, the Board acknowledged that the RO failed to apply 38 C.F.R. § 3.156(c) but concluded that the Veteran was not entitled to an earlier effective date because the new and material evidence used to reopen the prior final denial was not the unit history, but rather his lay statements which describe his stressors. In the December 2013 Memorandum Decision, the Court held that the Board's finding that the RO reopened the PTSD claim based solely on the Veteran's stressor statement was unsupported by the record. Second, the Court stated that the Veteran need not demonstrate that his claim was reopened solely due to the unit histories from the service department, but that his claim was granted in part due to the unit histories in conjunction with other evidence. As a result, the case was remanded to provide the Board with an opportunity to apply the correct law, weigh and consider all evidence of record, and make an appropriate determination. IV. Analysis RO decisions for which a timely notice of disagreement is not filed become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. §§ 5109A , 7111 (West 2002); 38 C.F.R. §§ 3.105, 20.1400 (2013). In Fugo v. Brown, 6 Vet.App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error. Id. at 43. The Court noted that CUE 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. Id. The Court has propounded a three-prong test to determine whether clear and unmistakable error is present in a prior determination: (1) '[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 the 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) (en banc)]. The Court has also held that allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. CUEs 'are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.' Russell v. Principi, 3 Vet.App. 310, 313-14 (1992). The claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Id. When there is evidence both pro and con on the issue, it is impossible for a veteran to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet.App. 84, 88 (2000). For the purposes of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). At the time of the May 2002 rating decision, 38 C.F.R. § 3.156(c) provided the following: Where the new and material evidence consists of a supplemental record from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service-connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, if retroactive evaluation will be assigned accordingly except as may be affecting by the filing date of the original claim. Since the Veterans claim to reopen, 38 C.F.R. § 3.156(c) has been amended, but the court has clarified that "under either pre-amendment or amended section 3.156(c), a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim." Mayhue v. Shinseki, 24 Vet.App. 273, 279 (2011); Vigil v. Peake, 22 Vet.App. 63, 65 (2008). In the present case, the Veteran contends that the May 2002 rating decision that granted service connection and established an effective date of August 31, 2000 for PTSD was clearly and unmistakably erroneous and that an effective date of October 15, 1993 is warranted. As noted, the Veteran originally filed a claim seeking service connection for PTSD in October 1993. This claim was denied by the RO in an August 1994 rating decision. The Court has stated that this decision is final. See the December 2013 Memorandum Decision. In August 2000, the Veteran filed a new claim seeking service connection for PTSD. Following this claim, the RO obtained a history of the Veteran's unit while in Vietnam. In the May 2002 rating decision, the RO reopened the Veteran's claim and granted service connection for PTSD based on the unit history, VA medical records and VA examination reports. The Veteran contends that the RO failed to apply 38 C.F.R. § 3.156(c) and § 3.400(q)(2) in the May 2002 decision and, had the RO applied those provisions, an earlier effective date would have been warranted in light of supplemental service records. Upon review, the service department records that were obtained in connection with the Veteran's claim reflect that the Veteran's unit came under attack while stationed in Vietnam. These records were clearly relevant to his claim and were considered when reopening the Veteran's claim. As these records were obtained following the 1994 denial, the May 2002 rating decision should have reconsidered the Veteran's prior claim. It is undebatable that the Veteran's service department records verify his in-service stressors. Moreover, prior to the May 2002 rating decision, the record included a June 1994 VA examination report which diagnosed PTSD and documented the Veteran's complaints that his unit came under fire while in Vietnam. By failing to reconsider the Veteran's initial claim as required by 38 C.F.R. § 3.156(c) the RO failed to consider whether an effective date prior to August 2000 was warranted and the law was incorrectly applied. Moreover, had this error not occurred, the decision would have been manifestly different. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Given this record, the RO's error in not applying the law to the facts of record manifestly changed the outcome of the case. Accordingly, the Board finds that CUE existed in the May 2002 RO rating decision. Specifically, the failure to consider whether an effective date earlier than August 31, 2000 was warranted for the service connection for PTSD was the product of CUE. Accordingly, since it has been shown that "reasonable minds could only conclude that the original decision was fatally flawed at the time it was made," Russell, 3 Vet. App. at 313, the Board finds that the May 2002 rating decision was clearly and unmistakably erroneous in the failure to reconsider the prior claim. Based upon the prior claim, the AOJ must now reconsider the effective date of the grant. ORDER The May 2002 RO decision was clearly and unmistakably erroneous because it failed to reconsider the Veteran's initial claim as required under 38 C.F.R. § 3.156(c) ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs