Citation Nr: 1801874 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-02 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an effective date earlier than January 19, 2011, for the award of service connection for posttraumatic stress disorder (PTSD), to include on the basis of clear and unmistakable error (CUE) in a November 2006 rating decision. 2. Entitlement to an initial rating in excess of 30 percent for service-connected PTSD. 3. Entitlement to an initial rating in excess of 30 percent for service-connected arteriosclerotic heart disease. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In June 2014, the Board remanded the Veteran's appeal for further development. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the June 2014 remand directives, and no further development is necessary with regard to the claim decided herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Here, as will be explained in further detail below, the Veteran contends that he is unable to work as a result of his service-connected disabilities. Therefore, the Board has jurisdiction over this issue as part and parcel of his claims for higher ratings and has listed such on the title page. Finally, the Board notes that following the January 2017 Supplemental Statement of the Case, the Veteran submitted additional pertinent evidence without a waiver of AOJ consideration, including a March 2017 Disability Benefits Questionnaire (DBQ). Although this evidence was not considered in connection with his claim for an earlier effective date, the new evidence is not pertinent to that issue; therefore, the Board may proceed to the merits of that claim. Insofar as the March 2017 DBQ is pertinent to his claim for a higher rating for arteriosclerotic heart disease, as the Board is remanding that claim for further development, the AOJ will have an opportunity to address that evidence in the first instance. The issues of entitlement to higher initial ratings for service-connected PTSD and arteriosclerotic heart disease, as well as entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a final decision issued in November 2006, the AOJ denied the Veteran's petition to reopen his claim for service connection for PTSD on the basis that the evidence of record failed to confirm the Veteran's alleged in-service stressor. 2. After he was notified of the decision and his appellate rights in November 2006, he expressed timely disagreement with that decision in January 2007; however, he did not file a timely substantive appeal following the issuance of the September 2007 Statement of the Case. 3. The November 2006 rating decision did not contain any specific error of law or fact that compels a conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for such error. 4. The Veteran's subsequent petition to reopen his claim for service connection for PTSD was received on January 19, 2011; no formal or informal claim was received between the last final denial of his claim and January 19, 2011. 5. In the April 2011 rating decision on appeal, service connection for PTSD was granted, effective January 19, 2011, the date his petition to reopen was received. CONCLUSIONS OF LAW 1. The November 2006 rating decision that denied the Veteran's petition to reopen his claim for service connection for PTSD is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The November 2006 rating decision did not contain CUE. 38 U.S.C. §§ 5109A, 7105 (2012); 38 C.F.R. § 3.105 (2017). 3. The criteria for an effective date prior to January 19, 2011, for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with respect to the issue decided on the merits below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Analysis Generally, the effective date for an award based on an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400(q). The Veteran claims entitlement to an earlier effective date for the award of service connection for PTSD. He alleges that there was CUE in a November 2006 rating decision that declined to reopen his claim for service connection for PTSD and, had it not been for the CUE, service connection would have been granted. Specifically, in an April 2011 statement, he argued that the November 2006 rating decision committed CUE when it determined that there was insufficient evidence to verify his alleged in-service stressor. He pointed to the fact that the same information used in the April 2011 rating decision to confirm his alleged stressor was of record at the time of the November 2006 rating decision, including service personnel records showing that he was stationed at Camp Holloway in Pleiku, Vietnam, during the TET offensive in February 1968 when he was subjected to incoming enemy mortars. Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from the notification of an AOJ decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. § 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2017). If an earlier decision contained CUE, the prior decision will be reversed or amended, and for the purposes of authorizing benefits, the rating or adjudicative decision that constitutes a reversal 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 reversed decision. 38 C.F.R. §§ 3.105(a); 3.400(k). 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 v. Brown, 6 Vet. App. 40, 43-44 (1997). Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991); see also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion before the Court in a claim of CUE). CUE 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. Fugo, supra. Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensured, the error complained of cannot be clear and unmistakable. Id. The claimant must offer some persuasive reasons as to why the result would have been manifestly different but for the alleged error, unless it is the kind of error that, if true, would be clear and unmistakable on its face. Baldwin v. West, 13 Vet. App. 1, 5 (1999); Fugo, 6 Vet. App. at 44. Clear and unmistakable errors "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) (en banc). In order to find CUE in a prior adjudication, it must be determined (1) that either the correct facts known at the time or constructively known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the prior decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Grover v. West, 12 Vet. App. 109, 112 (1999); Russell, 3 Vet. App. at 313-14. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. May v. Nicholson, 19 Vet. App. 310, 313 (2005). That is, the laws in effect at the time of the AOJ or Board decision being attacked should be used. See, e.g., Fournier v. Shinseki, 23 Vet. App. 480 (2010) (finding that it was not CUE to determine that a claim was not pending when the regulations pertaining to notice and denial at the time of such notice were followed). A breach of the VA's duty to assist cannot form a basis for a claim of clear and unmistakable error. Baldwin, 13 Vet. App. at 7; Shockley v. West, 11 Vet. App. 208, 213 (1998); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). Such a breach creates only an incomplete rather than an incorrect record. See Caffrey, 6 Vet. App. at 382. A disagreement with the weighing of evidence also does not constitute clear and unmistakable error. See Russell, 3. Vet. App. at 313-14. In order to reasonably raise a claim of clear and unmistakable error, the claimant must provide some degree of specificity as to what the alleged error is. If a claimant fails to adequately plead a CUE claim, the proper remedy is to dismiss the challenge without prejudice. Simmons v. Principi, 17 Vet. App. 104, 114 (2003). By way of background, the Veteran filed a petition to reopen his claim for service connection for PTSD in June 2006. His petition was denied in a November 2006 rating decision and, at such time, the AOJ considered his service treatment records, service personnel records, post-service VA treatment records, and his lay statements. The AOJ determined that evidence submitted failed to establish a verifiable stressor. The Veteran was notified of the decision and his appellate rights in November 2006. In January 2007, he expressed timely disagreement with that decision. In September 2007, the AOJ issued a Statement of the Case that reopened his claim, but denied service connection on the merits, finding that the evidence of record failed to confirm his alleged stressor. Thereafter, the Veteran did not file a timely substantive appeal. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the period. However, in this case, such regulation is inapplicable as no new and material evidence was received prior to the expiration of the appeal period. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, with regard to 38 C.F.R. § 3.156(c), the Veteran's service treatment and personnel records were of record at the time of the prior final denial. Therefore, the November 2006 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. Accordingly, it is only subject to reversal or amendment if it contains CUE. 38 C.F.R. § 3.105(a). The Veteran filed a petition to reopen his claim for service connection for PTSD on January 19, 2011. In the April 2011 rating decision on appeal, the AOJ granted service connection for PTSD, effective January 19, 2011. The Veteran submitted a notice of disagreement in April 2011, alleging CUE in the November 2006 rating decision. In a January 2017 Supplemental Statement of the Case, the AOJ found that the November 2006 rating did not contain CUE, and denied his claim for an earlier effective date. Based on the evidence of record, the Board finds that an effective date for the award of service connection for PTSD prior to January 19, 2011, is not warranted With regard to the Veteran's argument that the November 2006 rating decision contained CUE by failing to acknowledge a verified stressor based on upon lay assertions of serving near mortar fire, despite service personnel records showing he was stationed at Camp Holloway in Pleiku, Vietnam during the TET offensive in February 1968, the Board notes that the April 2011 grant of service connection was specifically based on a rule change to 38 C.F.R. § 3.304(f) which came into effect in July 2010. Indeed, this rule change relaxed the evidentiary standard for establishing an in-service stressor that is related to fear of hostile military or terrorist activity. Because this evidentiary standard was not in effect prior to July 2010, it could not have been considered at the time of the November 2006 rating decision. As there was no provision for allowing lay testimony alone (for non-combat veterans) to establish the occurrence of a claimed in-service stressor based on allegations of fear of hostile military or terrorist activity at the time of the RO's 2006 decision, the fact that the RO did not concede the occurrence of such stressor based on the Veteran's statements of being scared while serving in the vicinity of mortar attacks cannot be the basis for finding CUE in that decision. See Baldwin v. West, 13 Vet. App. 1 (1999). While the Board acknowledges that service treatment records on file in 2006 do place the Veteran in Pleiku, Vietnam during the TET offensive, they in and of themselves do not independently confirm the occurrence of the stressors claimed at that time. Moreover, insofar as the Veteran alleges the AOJ failed to verify his alleged in-service stressor by submitting his service personnel records to the Joint Services Records Research Center or some other entity, as noted above, any failure in the duty to assist in developing his prior claim cannot constitute CUE. See Baldwin, 13 Vet. App. at 7; Shockley, 11 Vet. App. at 213; Caffrey, 6 Vet. App. at 383-84. In summary, the Veteran's allegations regarding CUE amount to a challenge to the weight assigned to the evidence of record at that time and/or a failure in the duty to assist. Reasonable minds could find that, based on the law at the time and the evidence then of record, that the Veteran did not have a verified or verifiable service-related stressor on which a diagnosis of PTSD could be based. Accordingly, the rating decision was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2014); 38 C.F.R. § 3.105(a) (2017). As noted above, following the November 2006 rating decision and the September 2007 Statement of the Case, VA received the Veteran's petition to reopen his claim for service connection for PTSD on January 19, 2011, and the April 2011 rating decision on appeal granted service connection for PTSD, effective January 19, 2011, the date his petition to reopen was received. The Board finds that there is no document of record that can be construed as an informal or formal claim for service connection for PTSD that was received after the final November 2006 denial, but prior to the receipt of the January 19, 2011, petition to reopen. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim to reopen after a final disallowance or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Based on these regulations, the effective date has been appropriately assigned as the date his petition to reopen his claim for service connection for PTSD was received after the final November 2006 rating decision. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning effective dates prior to January 19, 2011, for the grant of service connection for PTSD. Accordingly, the preponderance of the evidence is against effective dates prior to January 19, 2011, for the grant of service connection for PTSD. As such, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2017). ORDER An effective date prior to January 19, 2011, for the award of service connection for PTSD is denied. REMAND Claims for Higher Ratings The Board notes at the outset that there may be outstanding VA treatment records which contain information relevant to the Veteran's claims for higher ratings. The most recent VA treatment records associated with the claims file are dated through March 14, 2014. To ensure that there is an adequate record upon which to decide the Veteran's claims, a remand is necessary to obtain any VA treatment records dated from March 14, 2014, to the present. Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, he should be provided the opportunity to identify any additional private treatment records that are relevant to his claims, and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records. See 38 C.F.R. § 3.159(c) (2017). When an increase in the level of a disability is at issue, the primary concern is the present level of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's most recent examinations to assess the nature and severity of his service-connected PTSD and arteriosclerotic heart disease were in March 2011 and February 2011, respectively. However, his lay statements, including a March 2017 statement, indicate that these conditions may have worsened. The Board notes that the Veteran submitted a March 2017 Disability Benefits Questionnaire (DBQ) concerning his arteriosclerotic heart disease; however, the DBQ noted that pertinent testing was pending, including exercise stress testing, and his left ventricular ejection fraction was not provided. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggerman v. Brown, 5 Vet. App. 281 (1993). Not only are these last examinations remote, the record indicates that his conditions may have worsened. As such, the Board finds that more contemporaneous examinations are needed to fully and fairly evaluate his claims for higher ratings. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). TDIU Finally, as noted in the Introduction, a claim of entitlement to a TDIU has been raised by the record. Specifically, in a March 2017 statement, the Veteran indicated that he had to retire early due to his arteriosclerotic heart disease. Thus, the issue of entitlement to a TDIU has been raised in connection with his increased rating claim. See Rice, supra. To date, he has not been provided with proper notice concerning the requirements for a TDIU claim. Therefore, on remand, the AOJ should send the Veteran proper notice. In addition, the AOJ should request that he complete an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and then adjudicate this matter. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran the proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask request that he complete an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Associate any VA treatment records dated from March 14, 2014, to the present, with the claims file. 3. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 4. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his service-connected PTSD. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of his service-connected PTSD, as well as the impact that such has on his social and occupational functioning. In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles and objective medical findings. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 5. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his service-connected arteriosclerotic heart disease. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should describe all symptoms associated with the Veteran's service-connected arteriosclerotic heart disease, as well as the severity of each symptom. The examiner should assess the workload of METs and left ventricular ejection fraction. The examiner should also address the functional effects, to include any limitations, that the Veteran's CAD has on his activities of daily living, to include employment. In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles and objective medical findings. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 6. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated, including entitlement to a TDIU. If the benefits sought on appeal are not granted, the Veteran should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs