Citation Nr: 1601104 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 11-02 749A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Whether there was clear and unmistakable error (CUE) in an October 2008 rating decision that denied service connection for PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from April 1965 to October 1971. This appeal to the Board of Veterans' Appeals (Board) is from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Records stored electronically in the Veterans Benefits Management System (VBMS) paperless claims processing system and Virtual VA were considered. The issue of an initial higher rating for PTSD is addressed in the REMAND portion of the decision below and it is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT An October 2008 rating decision denied service connection for PTSD; and, the correct facts, as they were known at the time of the October 2008 decision were before the RO, and the statutory or regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW The October 2008 rating decision denying entitlement to service connection for PTSD was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). At the outset, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has directed that the Veterans Claims Assistance Act of 2000 (VCAA) does not apply to CUE motions. Livesay v. Principi, 15 Vet. App. 165 (2001). Legal Criteria and Analysis The Veteran did not appeal the adverse determination in the October 2008 rating decision that denied service connection for PTSD, nor did he submit any additional evidence within a year following this decision. See Buie v. Shinseki, 24 Vet. App. 242 (2010). This decision thereby became final one year later. 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 has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. The Veteran alleges CUE in the October 2008 rating decision that denied service connection for PTSD on the basis that there was no legitimate reason to deny the claim. He included the following excerpt taken from a treatment record in support of his claim: His medical problems began in 1969. He was in Vietnam and he fell back from the top of a water tank. He braced himself with both arms. He received a head injury and he was evaluated and he woke up in the hospital about two days later. When he woke up both arms were hurting and they have been hurting ever since then. He further notes service connection has been established based on injuries resulting from the fall and that while the RO found that the Veteran had a diagnosis and treatment for PTSD, the claim was denied on the basis there was no confirmed stressor. He contended, therefore, that the RO denied the existence of evidence that was in the claims file thereby violating the regulation requiring decisions be based on all of the evidence or on the basis of erroneous fact finding. See VA Form 21-4138 dated November 2009. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166- (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations specific to claims for service connection for PTSD that were in effect in October 2008 require (1) a medical diagnosis of the disorder in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) a link, as established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 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. Id, 38 U.S.C.A. § 1154(b). If, however, the VA determines that the veteran did not engage in combat with the enemy or that the veteran engaged in combat with the enemy, but the alleged stressor is not combat related, the veteran's lay testimony by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128 (1997). While it is true that the October 2008 rating decision denied service connection for PTSD and did so on the basis that there was no confirmed stressor, the record also shows that the Veteran's July 2008 claim for compensation only alleged PTSD based on his combat service in Vietnam. See VA Form 21-4138 dated July 2008. Although the Veteran's DD Form 214 shows he served in Vietnam, it also shows his military occupational specialty (MOS) was cook, and there is no indication in service personnel records that he engaged in combat. Therefore, the RO correctly sought corroboration of the alleged stressor. In July 2008, the RO sent the Veteran a letter in which he was asked to provide the specific combat related incidents that resulted in his PTSD; he did not respond. In September 2008, the RO made a formal finding that the Veteran provided insufficient information to corroborate his combat stressor. See Memorandum dated September 2008. The Veteran's service treatment records contain no findings or symptoms associated with PTSD. Post-service medical records available in October 2008 contain a PTSD diagnosis, but give no indication whether or not it is based on an in-service stressor. See VA treatment records from August 2007 to October 2008. The treatment record the Veteran identified is dated in April 2002 and it was before the RO in October 2008. Although the Veteran's notice of disagreement states the PTSD diagnosis was based on the in-service fall described in the treatment record, this is a neurology consult record for the purpose of evaluating ulnar nerve damage and contains no reference to mental health problems. Given the Veteran's allegation that his PTSD was combat related, there was no reason to consider the in-service fall as a stressor. It is noteworthy that the Veteran did not indicate his PTSD was related to the in-service injury until he sought to reopen his claim in December 2009. Furthermore, the interpretation of evidence does not meet the standard for CUE. A valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412 (1996); Luallen v. Brown, 8 Vet. App. 92 (1995) (mere disagreement with how the RO evaluated the facts is inadequate to raise the claim of CUE); Eddy v. Brown, 9 Vet. App. 52 (1996). In short, at the time of the October 2008 rating decision the Veteran was not shown to have engaged in combat, did not provide a combat-related stressor or any in-service stress, and there was no evidence of a nexus between service and his PTSD. In light of the foregoing, the Board finds that the October 2008 rating decision was consistent with, and supported by, the evidence of record; was in accordance with governing law and regulations; and did not commit any error of fact or law that is undebatable and that, had not been committed, would have clearly resulted in a different outcome. Thus, the criteria for a finding of CUE have not been met and the Veteran's claim to revise or reverse the October 2008 rating decision with respect to his PTSD claim must be denied. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a) (2015). ORDER The appeal to revise or reverse the October 2008 rating decision that denied service connection for PTSD is denied. REMAND The VA examinations conducted in March and June 2010 are inadequate to decide the claim. VA treatment records through October 2008 repeatedly note the Veteran's depressed mood as does the private evaluation in June 2009. The March and June 2010 VA examinations, however, contain no reference to depression and little information regarding the scope of the symptoms and the frequency in which they occur. Given the examiners indicated that the disability is manifested by severe impairment, there is very little noted in the examination reports showing symptomatology to support these opinions. Moreover, as the last examination is now over five years old, and there is no recent evidence pertaining to the severity of his PTSD, another examination should be arranged to ascertain the current severity of his service-connected PTSD. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The claims file also shows the Veteran has had ongoing VA treatment for PTSD through October 2008 and that he continued to receive treatment after that date; however, no treatment records have been associated with the claims file since then. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the RO should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following action: 1. Obtain and associated with the claims file copies of VA treatment records for PTSD since October 2008. 2. Then schedule the Veteran for a VA PTSD examination to determine the severity of his disability. The claims folder must be made available to the examiner. The examination report should reflect that the claims folder was reviewed. The examiner should identify all current manifestations of the service-connected PTSD and he or she should also provide an opinion concerning the current degree of social and industrial impairment resulting from both the service-connected PTSD. A clear explanation for all opinions is needed. If the examiner is unable to provide an opinion he or she should explain why. 3. After completing the above action and undertaking any additional development deemed appropriate, readjudicate the claim based on all of the evidence of record. If the matter remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs