Citation Nr: 1803543 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 15-04 196A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date earlier than March 25, 2003 for entitlement to service connection for post-traumatic stress disorder; depressive disorder, not otherwise specified, to include on the basis that failure to grant service connection for this disability in a March 8, 2002 rating decision constituted clear and unmistakable error (CUE). WITNESSES AT HEARING ON APPEAL The Veteran and P. L. ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to May 1970. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before a Decision Review Officer (DRO) in December 2014. A copy of the hearing transcript has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The claim for service connection for PTSD was originally denied on March 23, 1993. 2. A March 8, 2002 rating decision continued the prior final denial. This rating decision was considered final, as a Notice of Disagreement was not received within one year of VA's notification letter dated March 15, 2002. 3. The Veteran has not alleged an error of fact or law in the rating decision that compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. 4. The effective date of entitlement to service connection for posttraumatic stress disorder is March 25, 2003, the date of reopened claim. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 25, 2003, for the grant of service connection for PTSD; depressive disorder, not otherwise specified, have not been met. 38 U.S.C. §§ 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for revision of the March 2002 rating decision on the grounds of CUE are not met. 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran has not raised any issues with the duty to notify or duty to assist. 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 duty to assist argument). II. Earlier Effective Date Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110 (a) Subsection (b) provides: (1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release. (2) (A) The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. (B) For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation. 38 U.S.C. § 5110 (b). Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. 38 U.S.C. § 5110 (g). Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105. A determination that a prior determination involved CUE involves the following 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 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 clear and unmistakable error 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 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). CUE is a very specific and rare kind of error. It 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. Thus, even where 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 (1993). A valid allegation of CUE requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412 (1996). Mere disagreement with how the RO evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A decision regarding CUE must be made on the basis of the law and evidence at the time of the decision at issue. Porter v. Brown, 5 Vet. App. 233 (1993). There must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, 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 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. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Notably, a determination of 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). Errors that cannot constitute CUE, pursuant to 38 C.F.R. § 20.1403 (d) and (e), include (1) a changed diagnosis, where a "new medical diagnosis . . . 'corrects' an earlier diagnosis considered in a Board decision;" (2) VA's failure to comply with the duty to assist; (3) a "disagreement as to how the facts were weighed;" and (4) a subsequent change in interpretation of the statute or regulation that was applied in the Board decision. See Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005). III. History A March 1993 rating decision previously denied service connection for PTSD because there was no evidence of a confirmed combat stressor. The Veteran failed to report for a VA examination, from which additional evidence was expected to be obtained to support his claim. The Veteran was notified of this denial. The Veteran filed a claim to reopen his claim for entitlement to service connection for posttraumatic stress disorder on October 29, 2001. He submitted treatment records showing PTSD was identified by Dr. W. on October 18, 2001. The report shows that the diagnosis of posttraumatic stress disorder was based on stressors of "duty in Vietnam" and the loss of two children in an auto accident in 1990. The Veteran also submitted a treatment report from Dr. C. dated November 16, 2001, which showed a diagnosis of prolonged and chronic posttraumatic stress disorder. This treatment report shows that the diagnosis was based on the Veteran's self-reported history of combat related stressors. In the rating decision dated March 8, 2002, the previous denial of entitlement to service connection for PTSD was confirmed and continued. Although the evidence showed that the Veteran had been diagnosed with PTSD, there was insufficient evidence to corroborate his reported combat stressors. There was no evidence that the Veteran received a combat medal, or any other evidence confirming his participation in combat. He was notified of this continued denial by a letter dated March 15, 2002. The Veteran attempted to file a notice of disagreement (NOD) with the prior denial of posttraumatic stress disorder on March 25, 2003. As it was more than one year following notification of the prior denial, this could not be considered an NOD. However, it was considered an application to reopen the Veteran's claim for entitlement to service connection for posttraumatic stress disorder. The Veteran submitted lay statements from two soldiers who served with him as part of additional evidence. A buddy statement from G. S. dated July 7, 2003, reported that the Veteran served with his artillery battery in the Third Corps in Vietnam from March 1969 to September 1969. G S. reported that the Veteran's unit was frequently involved in artillery firefights with enemy forces. The Veteran also submitted a buddy statement from G. B. C. dated July 6, 2003, which stated that he served with the Veteran in Vietnam during 1969. He reported that the Veteran's first impression of the fire support base was a drainage ditch with countless skeletal remains of North Vietnamese Army soldiers. He reported that the Veteran served in the 23rd Group Artillery, and that while the two of them served together, the Veteran was exposed to many traumatic events. In May 2004, the Veteran was afforded a VA psychiatric examination obtained in support of his claim. The examination revealed a clinical impression of posttraumatic stress disorder. The VA examiner reported that the Veteran had been receiving psychiatric treatment at the VA Medical Center (VAMC) in Alexandria for the past two years or so, and was on multiple psychiatric medications. The Veteran stated that he was in Vietnam for one year and one week, serving with an artillery unit. He stated that he was exposed to thousands of bodies while in Vietnam, though he was not injured. The Veteran reported that he was exposed to 122 days of mortars and rockets. He stated, "We blew up men, women, and children in a school." The VA examiner stated that based on the documentation and reported stressors in service, it is as least as likely as not that the Veteran was exposed to specific stressors in Vietnam which resulted in his current posttraumatic stress disorder. There were impressions of posttraumatic stress disorder with depressive disorder, not otherwise specified; and histrionic personality disorder. Based on the additional evidence, the rating decision dated September 20, 2004, established entitlement to service connection for posttraumatic stress disorder from March 25, 2003, based on the date of receipt of the reopened claim. The Veteran filed a claim for an entitlement to an earlier effective date of entitlement to service connection for posttraumatic stress disorder on January 28, 2011. He stated that he believed entitlement to service connection for this disability should have been established from October, 2001, as he provided evidence from the Social Security Administration (SSA) showing that he has unable to work since 1999, and reports from. Dr. W. and Dr. C. show that he has had PTSD since October 18, 2001. The Veteran submitted a statement from Dr. M., in which he opined that based on a review of the psychiatry notes by Dr. W on October 18, 2001,. and Dr. C on November 16, 2001, the Veteran's symptoms of posttraumatic stress disorder have met the criteria for a 100 percent evaluation since October, 2001. The Veteran also submitted a statement from Dr. C., in which he attested that he has been disabled from posttraumatic stress disorder since October, 2001. Additionally, the Veteran submitted records from the SSA, showing that they determined that he has been disabled from employment, since July 15, 1999, due to his PTSD. On May 17, 2011, the Veteran filed a notice of disagreement with the decision to deny entitlement to an earlier effective date for entitlement to service connection for posttraumatic stress disorder. He reported that he believes sufficient evidence was of record to link his posttraumatic stress disorder to his in-service stressor at the time the original decision to deny entitlement to service connection for PTSD was made. He believes the rating decision which established entitlement to service connection for posttraumatic stress disorder effective March 25, 2003 was clearly and unmistakably in error. The Veteran testified at a local hearing in December 2014. He stated that he believes the rating denying his claim to reopen his claim for service connection for posttraumatic stress disorder was clearly and unmistakably in error. He believes that the examination reports from Dr. W. in October 2001, and Dr. D. C. November 2001 which were considered in support of that claim, were sufficient to show that he had a diagnosis of posttraumatic stress disorder, and that it could be linked to his combat stressors. He believes that it was common knowledge that all artillery companies received incoming fire during the Vietnam War, and that his assignment to an artillery unit was sufficient to establish that he experienced combat-related stressors. IV. Analysis The Board notes that in Rudd v. Nicholson, the Court held that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision. 20 Vet. App. 296, 299-300 (2006). With respect to a final VA decision assigning an effective date for service connection, "because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which the claim was received, 38 U.S.C. § 5110(a), only a request for revision based on clear and unmistakable error [CUE] could result in the assignment of [an] earlier effective [date]." Id. at 299. The Board will proceed accordingly. Here, an earlier effective date is not possible, because the statement was received after the expiration of the Veteran's one-year appeal period following notification of the prior rating decision. The rating decision was on March 8, 2002 and the Veteran's claim to reopen was received on March 25, 2003. The September 20, 2004 rating decision granted service connection for PTSD from March 25, 2003, the date the application to reopen was received. Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110 (a). The March 8, 2002 decision became final and the Veteran's attempt to readjudicate the final decision is nothing more than a freestanding claim. Such attempt is prohibited.. Next, the Board notes that an assertion 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, 23 (1991). The Veteran has not met this burden. The rating decision dated March 08, 2002, was not clearly and unmistakably in error for continuing the denial of entitlement to service connection for PTSD. The RO did not make the kind of error, of fact or of law, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The correct facts, as they were known at the time, were before the Board, and the statutory and regulatory provisions extant at the time were correctly applied. See 38 C.F.R. § 20.1403. The Board notes that VA regulations in effect at that time required corroboration of an in-service stressor. Therefore, although the evidence showed impressions of PTSD, there was insufficient evidence to corroborate the reported stressor upon which the diagnosis of posttraumatic stress disorder was based. The RO also considered the 2001 medical records in rendering its March 8, 2002 rating decision. In reference to the Veteran's assertion that he should have been afforded a VA examination prior to 2004, the Board notes that an allegation of a failure by VA to obtain an adequate VA examination cannot form the basis for a collateral attack on a final decision based on CUE. A failure in a duty to assist, assuming one existed, does not establish CUE. In essence, the asppellasnt has not raised a valid theory of CUE and the appeal is dismissed. ORDER The appeal of entitlement to an effective date earlier than March 25, 2003 for entitlement to service connection for post-traumatic stress disorder; depressive disorder, not otherwise specified, to include on the basis that failure to grant service connection for this disability in a March 8, 2002 rating decision constituted CUE is diasmiasased.. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs