Citation Nr: 1804534 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-19 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than May 13, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for PTSD, effective from May 13, 2011. A November 2015 rating decision increased the evaluation for service-connected PTSD to 70 percent, effective March 5, 2013. In September 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The record on appeal shows that, on November 8, 2001, VA received the Veteran's original application for VA compensation benefits, seeking service connection for bipolar disorder. In a September 2002 rating decision, the RO denied service connection for bipolar disorder, finding that the condition neither occurred in nor was caused by service. In response to the decision, the Veteran submitted additional evidence in support of his claim. The RO issued another rating decision in April 2003, which continued the denial of service connection. The Veteran submitted additional evidence, and in response, the RO issued another rating decision in February 2004, which continued the denial of service connection for bipolar disorder. The record on appeal shows that the Veteran was notified of the decision and his appellate rights in a February 2004 letter sent to his most recent address of record. The letter was not returned by postal authorities as undeliverable, and the record shows that the Veteran did not appeal the RO's determination to deny service connection for bipolar disorder. The Veteran did submit evidence in support of a claim for PTSD. The RO denied service connection for PTSD in a September 2004 rating decision. The record on appeal shows that the Veteran was notified of the decision and his appellate rights in a September 2004 letter sent to his most recent address of record. The letter was not returned by postal authorities as undeliverable, and the record shows that the Veteran did not appeal the RO's determination to deny service connection for PTSD. Thus, the September 2004 rating decision became final. On December 27, 2006, the Veteran submitted a request to reopen his previously denied claim of service connection for bipolar disorder. In a September 2007 rating decision, the RO determined that new and material evidence had not been submitted to reopen the previously denied claim of service connection for bipolar disorder. The Veteran was notified of the RO's decision and his appellate rights in a September 2007 letter sent to his most recent address of record. The letter was not returned by postal authorities as undeliverable. The record shows that the Veteran did not appeal, nor was new and material evidence received within the applicable time period. Thus, the September 2007 rating decision became final. On May 13, 2011, the Veteran submitted a request to reopen his previously denied claim of service connection for PTSD. In an August 2012 rating decision, the RO determined that new and material evidence had not been submitted to reopen the previously denied claim of service connection for PTSD. The Veteran was subsequently afforded a VA examination in March 2013, and the examiner concluded that it was more likely than not that the Veteran's PTSD symptoms were incurred during his service in Vietnam. The examiner also diagnosed the Veteran with secondary conditions of bipolar disorder and personality disorder, but found that these conditions were not a progression of the primary diagnosis because they more likely than not preceded military service. The RO granted service connection for PTSD and assigned an initial 50 percent disability rating, effective May 13, 2011. The Veteran appealed the effective date assigned by the RO, arguing that he was entitled to an effective date of November 8, 2001, corresponding to the date of his original claim. He argued that he had submitted sufficient evidence to warrant a favorable decision and that the VA examination which he was provided in May 2002, was superficial and cursory. During the September 2016 Board hearing, the Veteran indicated that he should be entitled to an earlier effective date because he had a diagnosis of PTSD prior to the September 2002 rating decision. He also indicated that he was cognitively unable to understand the appeals process, and at the time, his PTSD made it difficult to file timely appeals. The Veteran also indicated that he did not know the details of the report provided by the VA examiner in May 2002, but that it seemed as though this examination was not reviewed by the RO when it adjudicated the September 2002 rating decision. He reported that he was not properly assisted with his claim until he began working with the RO in Seattle, Washington, and that through a VA examination scheduled by them, he was properly diagnosed with PTSD. The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. In order for a veteran to be awarded an effective date based on an earlier claim, he or she has to show clear and unmistakable error (CUE) in the prior denial of the claim. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). Generally, a decision of the RO that is not timely appealed becomes final and binding in the absence of CUE. A claim for benefits based on CUE in a prior final rating decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). During the September 2016 hearing, the Veteran and his representative were informed that the previously denied claims in this case were not appealed and that an earlier effective date could only be established if there was CUE in the prior decisions. His representative clearly indicated that they were not claiming CUE with regard to the September 2004 rating decision. However, it is unclear as to whether the Veteran is claiming CUE with regard to any other prior final rating decisions, given the errors that were raised both in his testimony and his statements of disagreement. Towards the end of the hearing, the Veteran and his representative were again informed that there would need to be a finding of CUE in order to reach back to the earlier claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). They indicated that they understood, but did not clearly indicate whether they were intending to raise a CUE claim with regard to any other rating decision. In light of the allegations of error raised during the course of the appeal and at the September 2016 Board hearing, the Board finds that a remand of this matter is necessary for clarification as to whether there is a possible claim of CUE in any prior rating decision. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Andrews v. Nicholson, 421 F.3d 1278, 1282-83 (C.A. Fed. 2005) ("Although CUE claims must be pled with specificity, Roberson requires the RO and the Board to 'fully and sympathetically' develop a veteran's pro se CUE motion to its optimum before deciding it on the merits."). The Board advises the Veteran and his representative that, for a claim of clear and unmistakable error to be reasonably raised, it must be pled with specificity. See e.g. Andre v. West, 14 Vet. App. 7, 10 (2000), aff'd sub nom. Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). They are also advised that it is well established that allegations that VA failed in its duty to assist are, as a matter of law, insufficient to form a basis for a claim of CUE. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Stated another way, any breach by VA of its duty to assist, such as by providing an adequate examination, cannot form a basis for a claim of clear and unmistakable error because such a breach creates only an incomplete record rather than an incorrect one. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Crippen v. Brown, 9 Vet. App. 412, 424 (1996). Additionally, any allegations regarding how the AOJ weighed or evaluated the facts of the case in a prior decision cannot form the basis of a clear and unmistakable error claim. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Accordingly, the case is REMANDED for the following action: 1. The AOJ should provide the Veteran and his representative with an opportunity to clarify whether they are alleging CUE in any prior final decision and to submit additional argument in support of any such claim. 2. If the Veteran alleges CUE in a prior final decision, the AOJ should adjudicate that claim. 3. After completing the above actions, the AOJ should readjudicate the earlier effective date claim. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).