Citation Nr: 18149043 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 09-34 357 DATE: November 8, 2018 ORDER Entitlement to an earlier effective date prior to July 28, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD), to include on the basis of clear and unmistakable error (CUE) is denied. REMANDED Entitlement to an increased rating for PTSD is remanded. FINDING OF FACT 1. The Veteran’s September 2007 claim of service connection for PTSD was denied in a September 2008 rating decision. 2. The Veteran submitted a notice of disagreement with the September 2008 rating decision and a statement of the case was issued; however, the Veteran did not submit a substantive appeal, and new and material evidence was not received during the appeal period. 3. The September 2008 rating decision considered the correct facts and did not incorrectly apply any pertinent law or regulation; it does not contain CUE. 4. The Veteran’s petition to reopen a claim for service connection for PTSD was received by the RO on July 28, 2014. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for the grant of service connection for PTSD have not been met, to include on the basis of CUE. 38 U.S.C. §§ 7105 (c) (2012); 38 C.F.R. §§ 3.105 (a), 3.155(b), 3.400(q)(1)(ii) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1984 to February 1987, from July to September 1997, from January 2002 to June 2002, from January 2004 to December 2004, and from December 2005 to November 2006. 1. Entitlement to an earlier effective date for the grant of service connection for posttraumatic stress disorder (PTSD) prior to July 28, 2014 In general, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later, unless otherwise provided. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. A rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302. A claim that is the subject of a final decision can be reopened upon the submission of new and material evidence. 38 U.S.C. § 5108. A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). The applicable statutory and regulatory provisions require that VA look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). Informal claims were recognized prior to March 24, 2015, after which a proper claim form must be filed. The Veteran filed a claim of service connection for PTSD in September 2007. A September 2008 rating decision denied his claim of service connection for PTSD. Notice was provided by VA letter in September 2008. The claim was denied as there was no evidence of combat service or a PTSD diagnosis. The Veteran filed a notice of disagreement in October 2008, along with military personnel records showing combat service. The claim was readjudicated in an August 2009 statement of the case, in which the VA acknowledged the Veteran’s combat service but found that there was no PTSD diagnosis. The Veteran did not perfect an appeal for this issue or submit new and material evidence within one year. Therefore, the decision is final. In July 2014, the Veteran filed a petition to reopen a claim of service connection for PTSD. A January 2015 rating decision granted his claim of service connection. In a February 2015 notice of disagreement, the Veteran challenged the effective date for the grant of service connection for his PTSD, stating that he filed a claim of service connection in September 2007 and service connection should be effective as of that date. The Board finds that an earlier effective date for the grant of service connection is not warranted. The Board recognizes that the Veteran filed a prior claim for his PTSD; however, that claim was denied and the Veteran did not perfect an appeal of that issue. Therefore, the September 2008 rating decision is final. Once a rating decision is final, they may not be revised except on the basis of clear and unmistakable error. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.105 (a). The Veteran contends that the September 2008 rating decision contains CUE, that his original claim should have been granted, and that this would provide for an earlier effective date. CUE is a very specific and rare 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. The laws and regulations that govern the award of service connection are basically unchanged since September 2008. Then, as now, the laws and regulations state that service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. First, the Board finds that the August 2009 statement of the case constitutes final decision in this matter. Although the September 2008 rating decision did not consider the Veteran’s military personnel record showing combat service, the Veteran’s claim was readjudicated in the August 2009 statement of the case. The Veteran filed a substantive appeal in September 2009 but specifically did not appeal his claim of service connection for PTSD. Therefore, the Board finds that the decision is final and that the additional service personnel records were considered in the final decision. After careful review of the September 2008 rating decision and August 2009 statement of the case, the Board must conclude that they do not contain CUE. This claim was denied on the basis that there was no diagnosis of PTSD. Although there were provisional diagnoses of PTSD and positive PTSD screenings in the VA treatment records, an October 2008 mental health consultation showed a diagnosis of “adjustment disorder, r/o PTSD.” The existence of a current disability is required to grant entitlement to service connection. The Veteran contends that the VA treatment records showed a diagnosis of PTSD and that it was CUE for the VA to ignore it and find there was no Axis I diagnosis. The Veteran further contends that the VA failed in its duty to assist and should have sought a VA opinion and reviewed medical records noted by the Veteran from Dr. C. The Board notes that VA requested medical records from Dr. C., however, none were submitted. As stated above, clear and unmistakable error (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.” 38 C.F.R. § 20.1403. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has established a three-prong test to determine whether there is CUE in an RO decision: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory-regulatory provisions extant at that time were not correctly applied; (2) the error must be “undebatable” and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); 38 C.F.R. § 20.1403; Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc). VA’s failure to comply with the duty to assist cannot constitute CUE. See 38 C.F.R. § 20.1403 (d)(2); see also Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) (“[A] breach of the duty to assist cannot constitute CUE.”). Therefore, the Veteran’s contention that VA failed to provide an examination or obtain records cannot be a basis for a CUE finding. Likewise, an allegation that the adjudicator improperly weighted or evaluated evidence cannot constitute CUE. See 38 C.F.R. § 20.1403 (d)(3); see also Damrel, 6 Vet. App. at 246 Therefore, the Board finds that based on the facts available to the RO at the time of the September 2008 rating decision and August 2009 statement of the case, it is not “undebatable” that the Veteran had a diagnosis of PTSD as the VA treatment records contained a mental health evaluation that specifically ruled out PTSD. The Board finds that the earliest possible effective date for the award of service connection for the Veteran’s PTSD is July 28, 2014. This is the date on which his request to reopen his previously denied claim was received. The effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (q)(1)(ii). Therefore, the Veteran’s claim for an earlier effective date for a grant of service connection for PTSD is denied. REASONS FOR REMAND Entitlement to an increased rating for PTSD is remanded. Remand is necessary to provide the Veteran with a statement of the case. In his February 2015 notice of disagreement, the Veteran indicated his disagreement with the “evaluation of disability” for his PTSD, in additional to the effective date of award. To date, no statement of the case has been provided with regard to this issue. Therefore, remand is warranted. The matter is REMANDED for the following action: Issue a statement of the case addressing the claim of entitlement to an increased initial rating for PTSD. Allow   the Veteran an opportunity to perfect his appeal. If a timely substantive appeal is not filed, this claim may be closed at the AOJ MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel