Citation Nr: 18149123 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-05 405 DATE: November 8, 2018 ORDER Inasmuch as there was no clear and unmistakable error in a rating decision of September 2012 that denied service connection for post-traumatic stress disorder (PTSD), the request to revise that decision is denied. FINDING OF FACT The September 2012 rating decision that denied entitlement to service connection for PTSD was adequately supported by and consistent with the law and evidence then of record, and did not contain undebatable error that would have manifestly changed the outcome of that determination. CONCLUSION OF LAW The September 2012 rating decision denying entitlement to service connection for PTSD was not clearly and unmistakably erroneous. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1967 to April 1970. The Veteran submitted a claim for service connection for PTSD in July 2011. A September 2012 rating decision denied service connection. The Veteran did not timely appeal the decision and it is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). He submitted another claim for service connection in July 2014, and in a November 2014 rating decision, service connection was granted, effective July 15, 2014, the date of claim. In August 2015, the Veteran submitted a claim alleging that his award of service connection should be effective the date of his original claim for service connection, July 26, 2011, on the basis of clear and unmistakable error. Unappealed rating decisions are final, and a final rating decision is not subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of clear and unmistakable error, as provided in 38 C.F.R. § 3.105. See 38 C.F.R. § 3.104(a) (2017). If the evidence establishes clear and unmistakable error, the prior decision will be reversed or amended. A finding of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. In determining whether a prior determination involves clear and unmistakable error, the Court has established a three-prong test. The three prongs are: (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 clear and unmistakable error must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). A clear and unmistakable error is a very specific and rare kind of “error.” It is the kind of error in 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 manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the Regional Office (RO), or the statutory and regulatory provisions extant at the time were incorrectly applied. 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 ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). In short, a disagreement with how VA evaluated the facts is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). Moreover, a failure on the part of the RO to fulfill its statutory duty to assist a veteran with the development of facts pertinent to a claim does not constitute clear and unmistakable error. See Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). A determination of clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. at 377. An assertion of clear and unmistakable error 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, placing a heavy burden on the claimant. Fugo v. Brown, 6 Vet. App. at 43-44; see also Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Veteran has not met this burden, for the following reasons. The Veteran argues that the September 2012 rating decision committed clear and unmistakable error by failing to properly consider the combat presumption under 38 C.F.R. 3.304(f)(2). That provision provides that veterans who engaged in combat with the enemy can prove that a claimed stressor occurred in service by lay evidence alone, as long as the claimed stressor is related to that combat and is consistent with the circumstances, conditions, or hardships of service and is not rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). The Veteran contends that the RO should have accepted the notations in his record of combat service as evidence of the occurrence of an in-service stressor. Further, he argues that VA treatment records establishing a diagnosis of PTSD were given less probative weight than a VA examination finding no evidence of PTSD and no claimed stressor. The laws and regulations in effect at the time of the September 2012 rating decision provided that service connection for PTSD required (1) a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2010). At the time of the September 2012 rating decision, a medical diagnosis of PTSD was required to conform to the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. § 4.125 (2010). At the time of the September 2012 rating decision, the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD varied depending upon whether the veteran engaged in “combat with the enemy.” See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat, a determination that was to be made on a case by case basis, required that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). If VA determined the veteran engaged in combat with the enemy and his alleged stressor was combat-related, then his lay testimony or statement was accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence was required - provided that such testimony was found to be “satisfactory,” i.e., credible and “consistent with circumstances, conditions or hardships of service.” See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. at 98. If, however, VA determined either that the veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor was not combat related, then his lay testimony, in and of itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain evidence that corroborated his testimony or statements. Id. VA treatment records before the RO at the time of the September 2012 decision included a January 2010 positive PTSD screen, a June 2011 notation that the Veteran had an “element of PTSD,” and a July 2011 interview assessment which established VA mental health care. The July 2011 record indicated that the clinician administered a PCL and thereafter provided a diagnosis of PTSD. The Board notes that a PCL is a self-report questionnaire used for making provisional PTSD diagnoses. A January 2012 VA examination was conducted which reviewed the Veteran’s medical history and found that he did not meet the criteria for a diagnosis of PTSD. The examiner noted that no specific stressor was identified anywhere in the claims file and that upon examination he struggled to identify any specific mental health symptoms and was unclear as to why he was seen by VA clinicians for psychotherapy. Based on a review of the record and the clinical interview and testing, the examiner diagnosed the Veteran with anxiety disorder, not otherwise specified (NOS), with symptoms of anxiety and sleep disturbance. An addendum opinion was obtained in August 2012. The clinician noted that at the time of the previous examination, there was evidence of a Combat Infantry Badge earned in service, however no stressor was reported and the evidence failed to show a specific stressor. For the actual diagnosis of anxiety disorder NOS, the clinician determined that it was less likely than not related to the Veteran’s service. She stated again that no traumatic stressor or incident had been identified. Although the specific etiology of the Veteran’s problems was unclear, there was nothing in his records to suggest his problems began during his military service, as neither his military records nor his self-report were clear as to a specific time of onset for his problems. She continued that he first received treatment in 2011, 41 years after service and inconsistent with an onset of problems during service. She noted that the Veteran’s current problems were ill-defined, as he could not clearly articulate any specific complaints or symptoms and his medical records did not clearly describe symptoms in any specific detail. Based on the lack of a confirmed diagnosis of PTSD either in his medical history or upon examination, and the lack of an identified stressor, service connection was denied in the September 2012 rating decision. When the Veteran made his subsequent claim for service connection, he reported that he served in Vietnam between September 1967 and September 1968 during the Tet Offensive as a combat infantryman. He stated, “Specifically, as a member of the Search and Rescue division, I was exposed to combat on a daily basis and saw lots of death, including the death of fellow friends and comrades. I was constantly in fear.” Subsequently, a VA examination diagnosed PTSD and based on the Veteran’s identified stressor and his evidence of combat, service connection was granted. The Board finds that a clear and unmistakable error has not been established. The correct facts, as they were known at the time, were before the RO. Namely, that the Veteran had participated in combat, that he had only made a general claim for PTSD based on combat in Vietnam without any more specific identified stressor, that there was no confirmed PTSD diagnosis of record made on the basis of a structured interview and clinical testing in accordance with the criteria of the DSM-IV, and that there was no evidence that a psychiatric condition had been linked to the Veteran’s service. Even supposing that a general claim of combat was a sufficient claimed in-service stressor, it is not undebatable that service connection would have been granted. The Veteran had not been diagnosed with PTSD at the time of the rating decision. A provisional diagnosis based on a self-report questionnaire does not meet the DSM-IV criteria. The January 2012 VA examiner found that the Veteran did not have PTSD – not merely because there was no identified stressor, but because he did not meet the diagnostic criteria of the condition. The examiner did not find that the Veteran suffered from any symptoms of PTSD, other than anxiety and sleep disturbance, which were determined to be symptoms of anxiety disorder NOS, unrelated to service. The Veteran himself could not identify any mental health symptoms or complaints. As such, without evidence of a confirmed diagnosis of PTSD, even if a general claim of combat were considered a sufficient stressor, there is no evidence that the outcome of the decision would have been manifestly different. Thus, the Board finds that the September 2012 rating decision denying entitlement to service connection for PTSD was reasonably supported by the evidence of record, correctly applied and considered prevailing legal authority, and was not undebatably erroneous. Furthermore, the RO had before it the correct facts as they were known at the time. The Board finds that the rating decision was a plausible application of the extant legal provisions to the correct facts. Therefore, the Veteran’s request for revision of the September 2012 rating decision denying entitlement to service connection for PTSD based on clear and unmistakable error is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel