Citation Nr: 1605121 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 14-00 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Augusta, Maine THE ISSUES 1. Entitlement to an effective date prior to September 20, 2010, for the grant of service connection for PTSD, to include on the basis of clear and unmistakable error (CUE) in the March 2012 rating decision. 2. Whether new and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a sinus disorder due to in-service microwave and radio-frequency radiation exposure. 3. Entitlement to service connection for a disorder manifested by joint pain due to in-service microwave and radio-frequency radiation exposure. 4. Entitlement to service connection for a skin disorder due to in-service microwave and radio-frequency radiation exposure. 5. Entitlement to service connection for a heart disorder due to in-service microwave and radio-frequency radiation exposure. 6. Entitlement to service connection for tinnitus (claimed as buzzing about the head and ears) due to in-service microwave and radio-frequency radiation exposure. 7. Entitlement to service connection for arthritis due to in-service microwave and radio-frequency radiation exposure. 8. Entitlement to service connection for a disorder manifested by hand tremors due to in-service to microwave and radio-frequency radiation exposure. 9. Entitlement to service connection for a disorder manifested by fatigue due to in-service to microwave and radio-frequency radiation exposure. 10. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, due to in-service to microwave and radio-frequency radiation exposure. 11. Entitlement to service connection posterior subcapsular cataracts due to in-service microwave and radio-frequency radiation exposure. 12. Entitlement to service connection for non-malignant thyroid nodular disease as a result of in-service exposure to ionizing radiation. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the Unites States ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The Veteran testified before the undersigned during a Board hearing held in September 2015. A copy of the hearing transcript (Transcript) is of record. During his hearing, the Veteran testified that he urged his representative to file a claim for entitlement to service connection for PTSD prior to September 2010. He indicated that he received assistance at a VA Vet Center for his PTSD in 2005 and 2006, and that he desired to file a claim at that time. The Board is very sympathetic to the Veteran in this instance. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Only the Secretary of VA has the authority to grant such equitable relief. Specifically, the provision of 38 U.S.C.A. § 503(a) states: If the Secretary determines that benefits administered by the Department have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary may provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom the Secretary determines is equitably entitled to such moneys. To the extent the Veteran wishes to seek equitable relief , he is encouraged to apply directly to the Office of the Secretary, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of whether new and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a sinus disorder due to in-service microwave and radio-frequency radiation exposure, as well as entitlement to service connection for a disorder manifested by joint pain, a skin disorder, a heart disorder, tinnitus, arthritis, a disorder manifested by hand tremors, a disorder manifested by fatigue, an acquired psychiatric disorder other than PTSD, and posterior subcapsular cataracts (all due to in-service microwave and radio-frequency radiation exposure), as well as entitlement to service connection for non-malignant thyroid nodular disease as a result of in-service exposure to ionizing radiation, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An informal claim for entitlement to service connection for PTSD was raised by the Veteran during a Board hearing held on September 20, 2010. 2. Service connection for PTSD was granted in a March 2012 rating decision, and an effective date of September 20, 2010, was assigned. 3. The March 2012 rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. 4. The evidence of record does not contain any communication received from the Veteran that could be considered a claim for entitlement to service connection for PTSD prior to September 20, 2010. CONCLUSIONS OF LAW 1. The March 2012 rating decision did not contain clear and unmistakable error. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a) (2015). 2. The requirements for an effective date prior to September 20, 2010, for the award of service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As such, no discussion of VA's duty to notify is necessary. The Board also finds that all necessary development of evidence has been completed. VA has obtained records relevant to the Veteran's claim. The Veteran has not indicated that any additional records, relevant to his claim, are outstanding. Thus, no further assistance is required. Earlier Effective Date The Veteran maintains that he is entitled to an effective date prior to September 20, 2010, for the grant of service connection for PTSD. Specifically, he contends that he urged his representative to file his claim at an earlier date, but his representative did not comply. In the alternate, he argues that VA Vet Center records, which provided a diagnosis of PTSD related to his period of service, represented an earlier, informal claim for service connection for this disorder. Generally, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. A "claim" is defined in the VA regulations 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). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2015). In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the Court has held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). Of note, 38 C.F.R. § 3.157, pertaining to what constitutes an informal claim, has been deleted from the most recent iteration of the CFR as VA no longer accepts informal claims. However, it was in effect at the time the Veteran filed his claim and is therefore discussed herein. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C.A. § 7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). The Court has held, however, that the Board is not required to "conjure up issues that were not raised by the appellant." Brannon v. West, 12 Vet. App. 32 (1998). Importantly, with regard to the Veteran's assertion that a Vet Center Record, authored in October 2006, and providing an assessment of PTSD of childhood onset exacerbated by military service, represented an informal claim for benefits, the Board notes that 38 C.F.R. § 3.157 does not apply in this instance. 38 C.F.R. § 3.157, which allows reports of examination or hospitalization to be considered as an informal claim in some instances, specifically relates to cases involving and earlier effective date for increased ratings, and does not apply to cases in which the issue at hand relates to an earlier effective date for the grant of service connection. See 38 C.F.R. § 3.157(b). As such, the existence of Vet Center records prior to the Veteran's current effective date for PTSD has no bearing in this case. Instead, the Board must determine the date that the initial claim for service connection, formal or informal, was received by VA. The Board has carefully reviewed all of the evidence of record, but finds that the assignment of an effective date prior to September 20, 2010, is not warranted for the grant of service connection for PTSD. There is no indication that the Veteran filed a claim for service connection, either formal or informal, prior to a statement during a Board hearing (held with regard to a separate issue) which was construed as an informal claim in September 2010. In fact, VA did not receive a signed, written document expressing the Veteran's intent to claim entitlement to service connection for PTSD until August 2011. During his Board hearing, he did not testify otherwise. When asked he if recalled submitting a claim for service connection prior to September 2010 for PTSD, he repeatedly asserted that he did not. While the Board is sympathetic to the Veteran in this case, as the Veteran made it clear that his representative failed to act upon his request to file a claim for service connection at an earlier date, such testimony cannot be construed as a retroactive claim for benefits. As no claim was received prior to September 20, 2010, and because the receipt of his claim was later than entitlement arose, there is no basis for assignment of an effective date prior to September 20, 2010. See 38 C.F.R. § 3.400(r). The Board is sympathetic to the Veteran's claim and understands his frustration with his representative's purported inaction. Unfortunately, the Board is ultimately bound by the law passed by Congress, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As discussed, the primary requirement for the assignment of an effective date is the receipt of a claim by VA. While VA works closely with Veterans Service Officers (VSO), and greatly appreciates their assistance, communications with a VSO is simply not the equivalent with communication with VA. Clear and Unmistakable Error The Veteran argues that the March 2012 rating decision that denied his claim of entitlement to compensation for PTSD should be reversed or revised on the basis of CUE. Specifically, he points to a statement authored in September 2012 by a private provider which indicated that the October 2006 Vet Center report contained multiple errors, and that the Veteran's PTSD was exclusively caused by his military experiences. As best as the Board is able to determine, the Veteran contends that CUE was committed by the RO in its failure to recognize that the Veteran's Vet Center counselor failed to educate him as to the process of submitting a claim for entitlement to service connection. The Board notes that an unappealed rating decision is final and binding based on the evidence of record at the time of such decision in the absence of CUE in that decision. When the evidence establishes CUE in a prior decision, the decision will be reversed or amended. 38 U.S.C.A. § 7105(c); 38 U.S.C.A. § 3.105(a). There is a three-prong test for determining whether a prior determination involves CUE: (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 manifestly have changed the outcome at the time it was made; and (3) a determination that there was CUE must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). CUE a very specific and rare kind of error. It is the kind of error, of 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 have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the claimed error cannot be deemed CUE. CUE 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 (1992). Importantly, a failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). Furthermore, in determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there is no error within the meaning of 38 C.F.R. § 3.105(a). Russell at 314; see also Yates v. West, 213 F.3d 1372 (2000). As noted above, the Veteran received counseling at a VA vet center prior to the March 2012 rating decision, and prior to his September 2010 informal claim for service connection for PTSD. This treatment included a diagnosis of PTSD, and noted that such was exacerbated by his period of active service. The Veteran does not contend that he submitted a claim for service connection for PTSD prior to September 2010. The RO, in its March 2012 rating decision, granted the Veteran's claim, assigning an effective date of September 20, 2010, the date of receipt of the Veteran's informal claim for service connection. The Veteran filed a notice of disagreement, asserting that CUE was committed in the assignment of this effective date, insisting that the duty to assist was not upheld by VA with regard to the Vet Center's failure to provide instructions as to how to file a claim for benefits. As such, the Veteran's arguments regarding CUE revolve around the perceived failure of VA to assist him in the development of his claim. Such is not a proper basis for CUE. See Crippen; see also Caffrey. The Veteran has not argued that the correct facts were not before the RO at the time of its rating decision. While the Veteran insists that his diagnosis of PTSD, found to be related to his period of service prior to September 2010, should be a consideration in this case, such arguments do not demonstrate error that is undebatable which would clearly alter the March 2012 decision which granted entitlement to service connection. As discussed in detail, the effective date was determined by the initial receipt of the Veteran's claim, and he testified that he never submitted a claim prior to September 2010. Thus, upon review of the totality of the evidence of record, the Board cannot say that it is "undebatable" that the RO's March 2012 rating decision contains error in failing to grant an effective date prior to September 20, 2010, for PTSD. The evidence of record at the time of the RO's decision supported its conclusion that the first claim of record, formal or informal, was received on that date. The Veteran has not presented evidence of CUE in the RO's March 2012 adjudication, which, had such error not been made, would have manifestly changed the outcome of the decision. As such, the claim of CUE in the March 2012 rating decision is denied. For the foregoing reasons, the record does not provide a basis for assignment of an effective date earlier than September 20, 2010, for the grant of service connection for PTSD. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply. See Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an effective date earlier than September 20, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD), to include on the basis of clear and unmistakable error (CUE) in the March 2012 rating decision, is denied. REMAND A July 2014 rating decision denied the issues of whether new and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a sinus disorder due to in-service microwave and radio-frequency radiation exposure, as well as entitlement to service connection for a disorder manifested by joint pain, a skin disorder, a heart disorder, tinnitus, arthritis, a disorder manifested by hand tremors, a disorder manifested by fatigue, an acquired psychiatric disorder other than PTSD, and posterior subcapsular cataracts (all due to in-service microwave and radio-frequency radiation exposure), as well as entitlement to service connection for non-malignant thyroid nodular disease as a result of in-service exposure to ionizing radiation. Within one year of notification of that decision, in January 2015, the Veteran filed a notice of disagreement (VA Form 21-0958), indicating his disagreement with the July 2014 rating decision. Following a search of the Virtual VA and VBMS electronic records systems, an SOC has not been identified as having been prepared for these issues. The Board finds that the January 2015 filing constitutes a timely Notice of Disagreement with regard to these issues. 38 C.F.R. § 20.201 (2015). To date, the Veteran has not been provided an SOC or given an opportunity to perfect the appeal of these additional claims to the Board by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement). Therefore, the Board must remand these claims, rather than merely referring it back to the AOJ, for the preparation of an SOC. An SOC must be issued, and the Veteran given an opportunity to perfect the appeal of these claims to the Board. See Manlincon, 12 Vet. App. at 238. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Furnish the Veteran and his representative with a Statement of the Case pertaining to the July 2014 denial of the following issues; whether new and material evidence has been received sufficient to reopen the claim for entitlement to service connection for a sinus disorder due to in-service microwave and radio-frequency radiation exposure, as well as entitlement to service connection for a disorder manifested by joint pain, a skin disorder, a heart disorder, tinnitus, arthritis, a disorder manifested by hand tremors, a disorder manifested by fatigue, an acquired psychiatric disorder other than PTSD, and posterior subcapsular cataracts (all due to in-service microwave and radio-frequency radiation exposure), as well as entitlement to service connection for non-malignant thyroid nodular disease as a result of in-service exposure to ionizing radiation. The Veteran should be appropriately notified of the time limits to perfect his appeal of these issues. These issues should not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal following issuance of an SOC. The Veteran 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). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs