Citation Nr: 1801806 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-21 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an effective date earlier than February 28, 2012, for the grant of service connection for PTSD. 2. Entitlement to an effective date earlier than February 28, 2012, for that grant of a total disability rating based on individual unemployability due to service connected disabilities (TDIU). 3. Whether there was clear and unmistakable error (CUE) in an August 1995 rating decision that denied service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Attorney Jan Dils WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from January 1969 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In December 2014 the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. FINDINGS OF FACT 1. On February 28, 2012, more than one year following active service, the Veteran filed a claim to reopen the previously denied claim of service connection for PTSD. 2. The Veteran did not have any prior claims for a TDIU pending at the time of the February 28, 2012, claim for service connection for PTSD. 3. In an August 1995 rating decision, the RO found that new and material evidence had not been submitted to reopen the previously denied claim of service connection for PTSD. 4. The correct facts, as they were known at the time of the August 1995 decision, were before the RO, and the statutory or regulatory provisions extant at the time were correct and correctly applied. CONCLUSIONS OF LAW 1. The criteria for an earlier effective than February 28, 2012, for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an earlier effective than February 28, 2012, for the award of a TDIU have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400(o), 4.16 (2017). 3. The August 1995 rating decision that found that there was not new and material evidence to reopen the previously denied claim of service connection for PTSD was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2017). The resolution of the Veteran's appeal for earlier effective dates turns on the law as applied to the undisputed facts in the Veteran's claim regarding the date his claim was received and date his entitlement arose. As this issue turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the claim. Consequently, no further notice or development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). In addition, VA's duties to notify and assist are not applicable to CUE claims. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). II. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. §§ 3.400 (2017). The effective date for disability compensation for direct service connection will be the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2). An effective date for an increased rating or TDIU claim may date back as much as one year before the date of the formal application for increase if it is "factually ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the particular claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. If relevant service department records are associated with the claims file at any time after VA issues a decision on a claim, VA will reconsider the previous claim, notwithstanding the requirements that new and material evidence be submitted. 38 C.F.R. § 3.156(c)(1) (2017). Relevant service department records include service records related to a claimed in-service event, injury or disease. See 38 C.F.R. § 3.156(c)(1)(i). This provision does not apply to records that VA could not have obtained when it decided the claim because the records did not exist at that time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2) (2017). If service connection is eventually granted, reconsideration of a claim under this section preserves an effective date of the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c)(3) (2017). The service records contemplated by 38 C.F.R. § 3.156(c) include records from the JSRRC, formerly known as the Center for Research of Unit Records (CRUR). See 70 FR 35388 (June 20, 2005) ("We intend that this broad description of 'service department records' will also include unit records, such as those obtained from CRUR that pertain to military experiences claimed by a veteran. Such evidence may be particularly valuable in connection with claims for benefits for posttraumatic stress disorder"). The Veteran is seeking effective dates earlier than February 28, 2012, for the grant of service connection for PTSD and a TDIU. He originally filed a claim of service connection for PTSD in March 1993. The claim was denied in a July 1993 rating decision because the record did not show that the Veteran was in combat, he did not provide a specific, traumatic incidence that produced stress, and there was not any medical evidence that showed a diagnosis of PTSD or a nervous condition while in military service. In June 1995 the Veteran filed a claim of service connection for PTSD. He wrote that while aboard a ship in Vietnam "he suffered a nervous breakdown" and that he was currently being treated for PTSD. The Veteran had a VA examination in July 1995 at which he reported stressors that included a near-death experience during service when a boat he was in was rammed, leaving him trapped in a compartment that he had to break out of. The examiner felt that if the combat experiences the Veteran described happened, he would diagnose the Veteran with PTSD. In the August 1995 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim because there was no evidentiary basis to verify the Veteran's stressors. Therefore, there was no reasonable possibility that new evidence submitted in connection with the current claim would change the previous decision. The Veteran filed another claim for service connection for PTSD, which was denied in a February 1999 rating decision. In January 2009 the Veteran filed a claim to reopen the previously denied claim of service connection for PTSD. In February 2009, a May 1970 letter from the captain of the U.S.S. Neches, a ship that the Veteran served on, was submitted by the Veteran. The letter states that while operating off the coast of Vietnam in the vicinity of Hue, the U.S.S. Oreleck lost steering control and collided with the U.S.S. Neches. There was light damage to both ships and no personnel were injured. In July 2009 CRUR reported that the command history of the U.S.S. Naches states there was a collision with the U.S.S. Oreleck in March 1970. The U.S.S. Neches subsequently returned to Subic Bay for repairs and departed a week later for operations. The stressor related to the collision that the U.S.S. Neches was noted by the RO to have been confirmed. The Veteran had a VA examination in July 2009, and the examiner wrote that it would not be possible to state that the U.S.S. Neches collision was the sole basis for the Veteran's PTSD. A September 2009 rating decision reopened the previously denied claim and denied the reopened claim of service connection for PTSD. The Veteran did not submit a Notice of Disagreement within a year of the September 2009 rating decision, and new and material evidence was not received within a year of the decision. Therefore, the September 2009 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.201 (2017). The Veteran filed a claim to reopen the previously denied claim of service connection for PTSD on February 28, 2012. A February 2013 rating decision granted service connection for PTSD and entitlement to a TDIU as of February 28, 2012, the date of the claim. The Veteran is seeking earlier effective dates based on military records regarding his verified PTSD stressor, the March 1970 collision involving the U.S.S. Neches, being associated with the claims file after the August 1995 rating decision. The May 1970 letter from the captain of the U.S.S. Neches submitted in February 2009 and the command history obtained from JRUR in July 2009 are relevant service department records under 38 C.F.R. § 3.156(c). However, the claim for service connection was denied in the unappealed September 2009 rating decision based on there not being a diagnosis of PTSD based on the confirmed stressor. Therefore, the September 2009 rating decision considered the newly obtained service department records and denied the claim in what became a final, unappealed rating decision. When the RO granted service connection in the February 2013 rating decision and assigned an effective date of February 28, 2012, there had already been a final rating decision that considered the service department records obtained in February 2009 and July 2009. Therefore, the records were not newly obtained for the February 2012 claim, and the prior final rating decisions cannot be reconsidered under 38 C.F.R. § 3.156(c). The proper effective date of the date of the claim, February 28, 2012, for the grant of service connection for PTSD was afforded since the claim was received more than one year following the Veteran's separation from service and there is no basis to reconsider prior claims. See 38 C.F.R. § 3.400(b)(2). The February 2013 rating decision granted a TDIU on the basis of the Veteran's PTSD. A total disability rating based on individual unemployability may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Since service connection was not in effect for PTSD prior to February 28, 2012, there is no basis to assign an earlier effective date for the grant of a TDIU. See id. III. Clear and Unmistakable Error In determining whether a prior determination involves CUE, the Court has established a three-prong test: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had 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 adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). If the evidence establishes CUE in a prior RO rating decision, the decision will be reversed or amended. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104(a), 3.105(a) (2017). CUE is a very specific and rare kind of "error" in 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 manifestly have been different but for the error. Generally, a finding of CUE requires that the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999). The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Veteran filed a claim of service connection for PTSD in March 1993. The STRs show that in September 1969 he was diagnosed with inadequate personality that existed prior to enlistment with somatizations after he complained of pain since he was ten years old. Multiple consultations concurred that his physical condition did not account for his symptoms. Service personnel records show that in January 1970 the Veteran was recommended for discharge due to unsuitability after being diagnosed with personality, immature, and personality, inadequate, at a psychiatric evaluation. His DD Form 214 shows that he was awarded the National Defense Service Medal. The claim of service connection for PTSD was denied in a July 1993 rating decision because the record did not show that the Veteran was in combat, he did not provide a specific, traumatic incidence that produced stress, and there was not any medical evidence showing a diagnosis of PTSD or a nervous condition while in military service. In June 1995 the Veteran filed a claim of service connection for a nervous condition and PTSD. He wrote that while aboard a ship in Vietnam "he suffered a nervous breakdown" and that he was currently being treated for PTSD. The Veteran had a VA examination in July 1995 at which he said that he was in three swift boats during military service that were sunk. He also reported a near-death experience during service when a boat he was in was rammed, leaving him trapped in a compartment that he had to break out of. In another incident, a nearby sister ship "blew up," causing extensive damage to the base at Subic Bay. The Veteran said that most of his post-service jobs lasted a few months before he would get mad and quit. The examiner wrote that if the combat experiences the Veteran described happened, he would diagnose the Veteran with PTSD. In the August 1995 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim because there was no evidentiary basis to verify the Veteran's stressors. Therefore, there was no reasonable possibility that new evidence would change the previous decision. Under VA regulations in effect at the time that the Veteran filed the claim in June 1995, service connection for PTSD required medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran was awarded the Purple Heart, Combat Infantry Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the inservice stressor. Additionally, if the claimed stressor will be accepted if it is related to the claimant having been a prisoner of war. 38 C.F.R. § 3.304(f) (1994). The Veteran's representative wrote in February 2014 that the August 1995 rating decision contains CUE because the records regarding the U.S.S. Neches collision had not been obtained and were therefore not considered. The lack of verification prevented the examiner from diagnosing the Veteran with PTSD. A breach of a duty to assist does not constitute CUE, and an incomplete record is not CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). Therefore, the Board finds that the August 1995 rating decision was not CUE based on the records relating to the U.S.S. Neches having not been obtained. There are no other grounds on which to find that the August 1995 rating decision contained CUE. The RO considered the facts as they were known, and there was not undebatable error based on the record and law that existed at the time. See Damrel, 6 Vet. App. at 245. ORDER Entitlement to an effective date earlier than February 28, 2012, for the award of service connection for PTSD is denied. Entitlement to an effective date earlier than February 28, 2012, for the award of a TDIU is denied. The Veteran's claim to reverse the August 1995 rating decision, that denied service connection for PTSD, based on CUE is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs