Citation Nr: 1805284 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-46 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date prior to January 31, 2012, for the award of service connection for posttraumatic stress disorder (PTSD), to include on the basis of clear and unmistakable error (CUE) in September 1972, August 2003, and December 2008 rating decisions that denied service connection for anxiety reaction with depressive and compulsive features, denied service connection for PTSD, and declined to reopen the previously denied claim for service connection for PTSD, respectively. REPRESENTATION Veteran represented by: Oliver O. Jahizi, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1959 to June 1972, including service in the Republic of Vietnam. Notably, the Veteran is a recipient of the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2013 by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD, effective February 2, 2012. Thereafter, in an October 2015 rating decision, the RO determined that there was a clear and unmistakable error in the assignment of the effective date of February 2, 2012, and assigned a new effective date of January 31, 2012. In November 2014, the Veteran and his spouse participated in an informal hearing before a Decision Review Officer at the RO. Thereafter, in October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record on appeal. At such time, the undersigned held the record open for 30 days for the Veteran's attorney to submit additional argument. In November 2017, he requested an additional 30 days to submit his argument and, thereafter, submitted such in December 2017. 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. A final September 1972 rating decision denied service connection for anxiety reaction with depressive and compulsive features. 2. In determining that service connection claim for anxiety reaction with depressive and compulsive features was not warranted, the September 1972 rating decision was consistent with, and reasonably supported by, the evidence then of record, and the existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. 3. A final August 2003 rating decision denied service connection for PTSD. 4. In determining that service connection claim for PTSD was not warranted, the August 2003 rating decision was consistent with, and reasonably supported by, the evidence then of record, and the existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. 5. A final December 2008 rating decision declined to reopen the Veteran's previous claim for service connection for PTSD. 6. In determining that reopening the claim for service connection for PTSD was not warranted, the December 2008 rating decision was consistent with, and reasonably supported by, the evidence then of record, and the existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. 7. Following the December 2008 adjudication, no further claim for service connection for PTSD was received by VA until January 31, 2012. 8. Service connection for PTSD was established in a July 2013 rating decision effective February 2, 2012. 9. In an October 2015 rating decision, the AOJ found CUE in the July 2013 rating decision's assignment of February 2, 2012, as the effective date for the award of service connection for PTSD and assigned a new effective date of January 31, 2012, the date of receipt of the successful claim to reopen. CONCLUSIONS OF LAW 1. The September 1972 rating decision that denied service connection for anxiety reaction with depressive and compulsive features is final. 38 U.S.C. § 4005(c) (1970) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1972) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. 2. The criteria for the revision or reversal of the September 1972 rating decision that denied service connection for anxiety reaction with depressive and compulsive features on the basis of CUE have not been met. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 3. The August 2003 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105(d) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2017)]. 4. The criteria for the revision or reversal of the August 2003 rating decision that denied service connection for PTSD on the basis of CUE have not been met. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 5. The December 2008 rating decision that declined to reopen the previously denied claim for service connection for PTSD is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008) [(2017)]. 6. The criteria for the revision or reversal of the December 2008 rating decision that denied service connection for PTSD on the basis of CUE have not been met. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 7. An effective date prior to January 31, 2012, for the award of service connection for PTSD is not warranted. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); VAOPGCPREC 5-04 (June 23, 2004); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims) Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (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. Analysis The Veteran contends that an effective date prior to January 21, 2012, for the award of service connection for PTSD is warranted. Specifically, he contends that September 1972, August 2003, and December 2008 rating decisions that denied service connection for anxiety reaction with depressive and compulsive features, denied service connection for PTSD, and declined to reopen a claim for PTSD, respectively, contain clear and unmistakable errors and, as such, he should be awarded an earlier effective date commensurate with the date of his underlying claims addressed in each decision. Finality of the September 1972, August 2003, and December 2008 Rating Decisions As an initial matter, the Board finds that the September 1972, August 2003, and December 2008 rating decisions that denied service connection for anxiety reaction with depressive and compulsive features, denied service connection for PTSD, and declined to reopen the previous claim for service connection for PTSD, respectively, are final. In this regard, rating actions are final and binding based on 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). From the date of notification of an AOJ decision, the claimant has one year to initiate an appeal by filing a notice of disagreement (NOD) 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, and 20.302(a). In this regard, if the claimant files a timely NOD with the decision and the AOJ issues a Statement of the Case (SOC), a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). If new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for an SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). VA is required to determine whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). September 1972 Decision In September 1972, the AOJ denied entitlement to service connection for anxiety reaction with depressive and compulsive features, claimed as a nervous condition. Although notified of this denial in October and November 1972, the Veteran neither appealed the denial nor submitted new and material evidence within the one-year appeal period. 38 C.F.R. § 3.156(b); Beraud, supra. Moreover, no relevant service department records were received subsequent to the September 1972 rating decision. 38 C.F.R. § 3.156(c). In this regard, the Veteran's service treatment records (STRs) of record were date stamped as received by VA in August 1972, one month prior to the September 1972 rating decision. Furthermore, while the Veteran submitted a portion of his service personnel records in August 2008, such contain duplicative information of that previously considered. Specifically, such reflect the fact that the Veteran served in combat in Vietnam, a fact previously of record by virtue of the Veteran's DD Form 214. Therefore, such rating decision is final. 38 U.S.C. § 4005(c) (1970) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1971) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. August 2003 Decision In August 2003, the AOJ did not explicitly reopen the previously denied claim for service connection for anxiety reaction with depressive and compulsive features, but nevertheless denied service connection for PTSD. The Veteran filed an NOD in September 2003 and an SOC was issued in May 2004. Thereafter, no further communication regarding his claim of entitlement to service connection for PTSD was received until August 2008, when the Veteran requested to reopen his claim. Thus, he did not perfect his appeal within 60 days of the issuance of the May 2004 SOC. Further, no new and material evidence was received within the remainder of the appeal period and, as discussed above, no relevant service department records were received thereafter. Therefore, the August 2003, rating decision is also final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2002) [(2017)]; see also Bond, supra. December 2008 Decision In December 2008, the AOJ declined to reopen the Veteran's previously denied claim of entitlement to service connection for PTSD. Although notified of this denial the same month, the Veteran neither appealed the denial nor submitted new and material evidence within the one-year appeal period. 38 C.F.R. § 3.156(b); Beraud, supra. Moreover, no relevant service department records were received thereafter and, in fact, the aforementioned service personnel records submitted by the Veteran in August 2008 were of record at the time of such decision. 38 C.F.R. § 3.156(c). Therefore, such rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008) [(2017)]. CUE in the September 1972, August 2003, and December 2008 Rating Decisions The Veteran maintains that the September 1972, August 2003, and December 2008 rating decisions denying service connection for anxiety reaction with depressive and compulsive features, denying service connection for PTSD, and declining to reopen the previously denied claim for service connection for PTSD, respectively, contain CUE. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. In order for a claim of CUE to be valid, 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). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). The United States Court of Appeals for Veterans Claims (Court) has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. To raise a valid claim of CUE, the claimant must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. The Board notes that before the 1990 effective date of what is now 38 U.S.C. § 5104(b), AOJs were not required to set forth in detail the factual bases for their decisions. Recognizing this, the Federal Circuit has explained that, in the absence of evidence to the contrary, the AOJ is presumed to have made the requisite findings. See Natali v. Principi, 375 F.3d 1375, 1380-81 (Fed. Cir. 2004); Pierce v. Principi, 240 F.3d at 1355-56. In determining whether CUE exists in such a case, the Board must examine the evidence of record; assume that the AOJ was aware of and duly considered extant law; and form a conclusion as to whether the AOJ decision was supportable in light of the evidence and law that then existed. Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005). Silence in a final AOJ decision made before 1990 cannot be taken as showing a failure to consider evidence of record. Eddy v. Brown, 9 Vet. App. 52, 58 (1996). September 1972 Decision The Veteran essentially contends that the September 1972 rating decision contained CUE in denying service connection for a psychiatric disorder because he had a diagnosed psychiatric disorder at that time and served in combat in Vietnam. As such, the Veteran asserts that the effective date of service connection for PTSD should be the day after his separation from service in light of the fact VA received his July 1972 claim for service connection for a nervous condition within a year of service discharge. Under the law extant in September 1972, service connection was warranted for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 310. In the September 1972 rating decision, the AOJ acknowledged the psychiatric findings from a September 1972 examination, which reflected a diagnosis of anxiety reaction with depressive and compulsive features, but determined that there was no showing of any complaint or treatment in service for a nervous condition. Indeed, while the Veteran and his representative claimed in-service psychiatric treatment at the October 2017 Board hearing, there is no evidence of such treatment in the Veteran's STRs. Furthermore, in the Veteran's original claim received in July 1972, he only reported in-service treatment for a back injury. Consequently, at the time of the AOJ's decision, there was no competent evidence of in-service incurrence of a psychiatric disorder, or a nexus between such claimed condition and the Veteran's military service. In the instant case, the Board finds that there is no CUE in the AOJ's denial of service connection for anxiety reaction with depressive and compulsive features in the September 1972 rating decision. In this regard, in determining that service connection for such disorder was not warranted, the September 1972 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome. Specifically, the Board finds that the September 1972 decision was factually supportable by the record at that time, and both the positive and negative evidence of record were acknowledged. It is apparent that the adjudicator reviewed the STRs and available post-service evidence, to include the September 1972 VA examination, in making a determination as to entitlement to service connection. Importantly, judgments as to the credibility and probative value of individual items of evidence are inherent in the function of VA adjudicators. The Veteran contends that his original claim should never have been denied as he served in Vietnam and was diagnosed with a psychiatric disorder not long after his separation from service, to wit, at the September 1972 VA examination. Here, it is true that the September 1972 rating decision contains no reference to, or discussion of, the fact that the Veteran served in combat in Vietnam. However, as noted above, it cannot be presumed from the AOJ's failure to mention the Veteran's combat service in Vietnam that such evidence was not considered. Eddy, supra. Additionally, while there was evidence of a current diagnosis of anxiety reaction with depressive and compulsive features, such was first noted at the Veteran's September 1972, VA examination, not during his military service. Here, it appears that the VA examiner was apprised the Veteran was doing well in the military following his return from Vietnam and did not experience any psychiatric difficulties until marital troubles surfaced in November 1971. Furthermore, despite being apprised of such fact, the September 1972 VA examiner did not relate the Veteran's diagnosed anxiety reaction with depressive and compulsive features to his military service. Consequently, the Board finds that the Veteran's arguments are tantamount to a disagreement with how the facts were weighed by the adjudicator in September 1972. In this regard, a disagreement with how a prior adjudication evaluated the facts does not establish CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). This argument is therefore without merit. Therefore, the Board finds the Veteran's allegations of CUE in the September 1972 rating decision to be without merit. In fact, competent evidence of a nexus between the Veteran's diagnosed psychiatric disorder was not received until June 2013, when a VA examiner found that the Veteran's PTSD was related to his military service. As such, at the time of the September 1972 rating decision, the only evidence of a nexus between the Veteran's post-service anxiety reaction with depressive and compulsive features and his military service consisted of his own reported history of such symptoms. However, the Veteran's lay statements are not competent to link a diagnosed post-service psychiatric disorder to service. Moreover, VA regulations did not recognize anxiety reaction with depressive and compulsive features as a chronic disease for which the nexus element of service connection can be satisfied by manifestation within one year of service or a continuity of symptomatology. While the AOJ could have requested a medical opinion to address whether the Veteran's diagnosis of anxiety reaction with depressive and compulsive features was related to service, failure to fulfill the duty to assist cannot amount to CUE. See Baldwin, supra. In this regard, the Federal Circuit held that a failure to give a Veteran a proper medical examination did not constitute a grave procedural error. Cook v. Principi, 258 F.3d 1311 (Fed. Cir. 2001). Even if the error were not "grave and procedural," the deficiencies in the examination only leave an incomplete record rather than an incorrect one and are thus not CUE. Caffrey v. Brown, 6 Vet. App. 377 (1994). Moreover, it is not certain that this evidence would have clearly and undebatable changed the outcome. See Damrel, supra; Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997). For the foregoing reasons, it cannot be said that the AOJ's denial of entitlement to service connection for anxiety reaction with depressive and compulsive features in the September 1972 rating decision contained an outcome determinative error in applying the law extant at that time to the facts that were before the adjudicator. Rather, the Board concludes that the correct facts, as known at the time, were before VA adjudicators and the statutory and regulatory provisions extant at the time were correctly applied. Specifically, there is no basis to find that it was unreasonable for the AOJ to have determined that the Veteran's diagnosed anxiety reaction with depressive and compulsive features was not related to his military service. Therefore, the allegations of CUE in the September 1972 rating decision are unsupported and the Veteran's motion for revision or reversal of such decision must therefore be denied. The benefit-of-the-doubt rule is not for application. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE claim because the nature of such claim is that it involve more than a disagreement as to how the facts were weighed or evaluated). August 2003 Decision The Veteran essentially contends that the August 2003 rating decision contained CUE in denying service connection for PTSD, or any other diagnosed psychiatric disorder, because the private medical records submitted by the Veteran documented his post-service psychiatric diagnoses. As such, the Veteran asserts that service connection should have been granted outright, or, at the very least, a VA examination should have been conducted to determine the etiology of his psychiatric disorder. Therefore, the effective date of service connection for PTSD, should be May 16, 2003, the day VA received his erroneous claim for an increased rating for his non-service connected psychiatric disorder. Under the law extant in August 2003, service connection was warranted for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. In May 2003, the Veteran filed a petition for an increased evaluation for a service-connected mental health condition. Notably, in July 2003, the AOJ wrote to the Veteran and advised him that his previous claim for service connection for a nervous condition had been denied and he needed to submit new and material evidence to support a claim to reopen. In response thereto, the Veteran submitted private treatment records from Dr. M.S. noting a nine year treatment history for depression and anxiety and the presence of PTSD symptoms as well as a letter from Dr. C.D. noting treatment for PTSD since 1993. In an August 2003 rating decision, the AOJ denied the claim, noting the Veteran did not have a current PTSD diagnosis. The Veteran was notified of the denial in September 2003 and filed a timely NOD referencing the aforementioned treatment records. In May 2004, the AOJ issued an SOC in which the Veteran's claim for PTSD was again denied for lack of a current diagnosis. In this regard, the AOJ specifically discussed the treatment records and letters from the aforementioned doctors, but nevertheless found the physicians did not provide the etiology of the Veteran's diagnosed psychiatric disorders, did not provide definitive diagnoses under the then-in-effect DSM-III, and did not link his psychiatric disorders to his military service. Ultimately, at the time of the AOJ's decision, there was no competent evidence of a nexus between the claimed condition and the Veteran's military service. As above, the Board finds that there is no CUE in the AOJ's denial of service connection for PTSD in the August 2003 rating decision. In this regard, in determining that service connection for PTSD was not warranted, the August 2003 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome. Specifically, the Board finds that the August 2003 decision was factually supportable by the record at that time, and both the positive and negative evidence of record was acknowledged. It is apparent that the adjudicator reviewed the private treatment records submitted by the Veteran in making a determination as to entitlement to service connection. Importantly, judgments as to the credibility and probative value of individual items of evidence are inherent in the function of VA adjudicators. The Veteran contends that this claim should not have been denied since the private treatment records documented current psychiatric diagnoses. Nevertheless, while there was evidence of psychiatric treatment, there was no evidence definitely diagnosing PTSD based on a confirmed stressor or linking the Veteran's other psychiatric disorders with his military service. In fact, as noted above, competent evidence of a nexus between the Veteran's diagnosed psychiatric disorder was not received until June 2013, when a VA examiner found that the Veteran's PTSD was related to his military service. There was no probative evidence of a nexus between the Veteran's post-service psychiatric symptoms and his military service at the time of the August 2003 decision. As such amounts to a disagreement with the weighing of facts, the Board finds this argument to be without merit. See Luallen, supra. Again, while the AOJ could have requested a medical opinion to address whether the Veteran's psychiatric symptoms were related to his service, a duty to assist failure cannot amount to CUE and there is no way to determine if such examination would yield findings supportive of the Veteran's claim. See Baldwin, supra; Cook, supra; Caffrey, supra; Damrel, supra; Hazan, supra. For the foregoing reasons, it cannot be said that the AOJ's denial of entitlement to service connection for PTSD in the August 2003 rating decision contained an outcome determinative error in applying the law extant at that time to the facts that were before the adjudicator. Rather, the Board concludes that the correct facts, as known at the time, were before VA adjudicators and the statutory and regulatory provisions extant at the time were correctly applied. Specifically, there is no basis to find that it was unreasonable for the AOJ to have determined that the Veteran's psychiatric symptoms were not related to his military service. Therefore, the allegations of CUE in the August 2003 rating decision are unsupported and the Veteran's motion for revision or reversal of such decision must therefore be denied. The benefit-of-the-doubt rule is not for application. Andrews, supra. December 2008 Decision The Veteran contends that the December 2008 rating decision contained CUE in declining to reopen the previous claim for service connection for PTSD because the VA and private medical records submitted by the Veteran documented his post-service psychiatric diagnoses. As such, as above, the Veteran asserts that service connection should have been granted outright, or, at the very least, a VA examination should have been conducted to determine the etiology of the Veteran's psychiatric disorder. Therefore, the effective date of service connection for PTSD should be August 15, 2008, the day VA received his claim to reopen his claim for service connection for a psychiatric disorder. Under the law extant in December 2008, service connection was warranted for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. In the December 2008 rating decision, the AOJ acknowledged the basis for the August 2003 denial (lack of a current diagnosis) and finality of such decision, and the need for new and material evidence to reopen such claim. The AOJ concluded the Veteran had not submitted new and material evidence to warrant reconsideration of the previously denied claim. Notably, the rating decision notes the review of VA treatment records from September 2007 through October 2008, which include records noting VA treatment for psychiatric disorders, including depression; the AOJ also noted reviewing the evidence of record at the time of the August 2003 rating decision. Ultimately, the AOJ determined there was no competent evidence of a nexus between the claimed condition and the Veteran's military service and, therefore, there was insufficient evidence to reopen the previously denied claim. The Board finds that there is no CUE in the AOJ's decision not to reopen the August 2003 rating decision. In this regard, in determining new and material evidence had not been submitted, the December 2008 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome. Specifically, the Board finds that the December 2008 decision was factually supportable by the record at that time, and both the positive and negative evidence of record was acknowledged. It is apparent that the adjudicator reviewed the duplicate copies of private treatment records submitted by the Veteran as well as the VA treatment records noting psychiatric treatment in making a determination as to whether sufficient evidence had been submitted to reopen the claim. Again, judgments as to the credibility and probative value of individual items of evidence are inherent in the function of VA adjudicators. The Veteran contends that this claim should have been reopened since the VA and private treatment records documented current psychiatric diagnoses. Nevertheless, while there was evidence of psychiatric treatment, there was no evidence definitely diagnosing PTSD based on a confirmed stressor or linking the Veteran's other psychiatric disorders with his military service. Once again, competent evidence of a nexus between the Veteran's diagnosed psychiatric disorder was not received until June 2013, when a VA examiner found that the Veteran's PTSD was related to his military service. There was no new and material evidence related to the nexus element at the time of the December 2008 decision. As the Veteran has again basically challenged the weighing of facts, the Board finds this argument to be without merit. See Luallen, supra. The AOJ's failure to schedule a psychiatric examination based on the facts at that time cannot amount to CUE and there is no way to determine if such examination would yield findings supportive of the Veteran's claim. See Baldwin, supra; Cook, supra; Caffrey, supra; Damrel, supra; Hazan, supra. For the foregoing reasons, it cannot be said that the AOJ's decision not to reopen the previous denial of entitlement to service connection for PTSD in the December 2008 rating decision contained an outcome determinative error in applying the law extant at that time to the facts that were before the adjudicator. Rather, the Board concludes that the correct facts, as known at the time, were before VA adjudicators and the statutory and regulatory provisions extant at the time were correctly applied. Specifically, there is no basis to find that it was unreasonable for the AOJ to have determined there was insufficient evidence to reopen the claim Therefore, the allegations of CUE in the December 2008 rating decision are unsupported and the Veteran's motion for revision or reversal of such decision must therefore be denied. The benefit-of-the-doubt rule is not for application. Andrews, supra. Effective Date Prior to January 31, 2012, for the Award of Service Connection for PTSD The Veteran contends that he is entitled to an effective date prior to January 31, 2012, for the award of service connection for PTSD. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "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. § 5110(a). Specifically, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). Prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, was 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). The basic facts in this case are not in dispute. The Veteran initially filed a claim for service connection for a nervous condition in July 1972. As discussed previously, such claim was denied in a final September 1972 rating decision and there is no CUE in such decision. Similarly, a final August 2003 rating decision denying entitlement to service connection for PTSD does not contain CUE. Finally, a December 2008 decision declining to reopen the Veteran's claim for service-connection for PTSD is final and does not contain CUE. Thereafter, VA received the Veteran's application to reopen his claim for service connection for PTSD in a Statement in Support of Claim (VA Form 21-4138) on January 31, 2012. A July 2013 rating decision granted service connection for PTSD, effective February 2, 2012, and in October 2015, the AOJ reassigned January 31, 2012, the date of the successful claim to reopen, as the effective date for service connection. The Board finds that there is no document of record that can be construed as an informal or formal claim for service connection for any psychiatric disability that was received after the final December 2008 denial, but prior to the January 31, 2012, informal claim. While the Veteran alleges that he has had an acquired psychiatric disorder since service, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). In the instant case, the effective date of the subsequent award of service connection can be no earlier than the date of the new application. Even if VA was in constructive possession of VA medical records between the final December 2008 final decision and the January 2012 informal claim, medical records cannot be construed as claims to reopen inasmuch as the Veteran's claim was not previously disallowed on the basis that his disability was not compensable in degree. See 38 C.F.R. § 3.157(b). Furthermore, the record clearly shows that, following the final decision in December 2008, the earliest document that can be construed as a claim for compensation, whether formal or informal, was received on January 31, 2012, when the Veteran filed a petition to reopen the previously denied claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As such, the preponderance of the evidence is against the assignment of an effective date prior to January 31, 2012, and the appeal must be denied. ORDER An effective date prior to January 31, 2012, for the award of service connection for PTSD, to include on the basis of CUE in September 1972, August 2003, and December 2008 rating decisions that denied service connection for anxiety reaction with depressive and compulsive features, denied service connection for PTSD, and declined to reopen the previously denied claim for service connection for PTSD, respectively, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs