Citation Nr: 18149365 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-28 264 DATE: November 9, 2018 ORDER The appeal for an effective date earlier than November 27, 2001, for the award of service connection for posttraumatic stress disorder (PTSD), is dismissed. The appeal for an effective date earlier than November 27, 2001, for the award of service connection for PTSD, based on clear and unmistakable error (CUE) in the October 2004 rating decision, is denied. FINDINGS OF FACT 1. In a letter dated in November 2005, the Veteran was notified that an October 2004 RO rating decision had granted service connection for PTSD, effective from November 27, 2001. 2. The Veteran did not file a notice of disagreement challenging the effective date assigned in the October 2004 RO rating decision, within a year of the notice letter. 3. The October 2004 rating decision is final as to the assigned effective date for service connection for PTSD. 4. It is not shown that the applicable statutory and regulatory provisions existing at the time of the October 2004 rating decision were incorrectly applied, such that they involved undebatable error, which had they not been made, would compel the conclusion, to which reasonable minds could not differ, that the decision would have been manifestly different but for the error. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date, prior to November 27, 2001, for service connection for PTSD, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The October 2004 rating decision that granted service connection for PTSD, effective November 27, 2001, was not clearly and unmistakably erroneous. 38 U.S.C. §§ 5101, 5109A, 7105; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1969 to November 1975. Entitlement to an effective date earlier than November 27, 2001, to include whether there was CUE in an October 2004 rating decision, for the award of service connection for PTSD. The Veteran contends an earlier effective date of February 13, 1981, is warranted for the grant of service connection for PTSD, to include as due to CUE in the October 2004 rating decision. The Veteran contends that February 13, 1981, is the date he submitted a statement describing his behavior changes since returning from Vietnam, and also contends that he was diagnosed with PTSD as early as 1981. Earlier effective date claims and a claim of CUE are different, mutually exclusive routes to the goal of determining an effective date. Flash v. Brown, 8 Vet. App. 332 (1995). After reviewing the appeal, however, the Board concludes that an earlier effective date for the grant of service connection for PTSD is not warranted, to include based on CUE in the October 2004 RO rating decision. Effective Date Claim The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation, shall be fixed in accordance with facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Once a previous rating decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. Id. Exceptions to this rule include a later grant of service connection based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38 C.F.R. § 3.156(c), and when the previous final decision is revised or reversed on the basis of CUE, as provided in 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a). If a claimant wishes to obtain an effective date earlier than that assigned in a Regional Office (RO) decision, the claimant must file a timely appeal as to that decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on CUE. There can be no freestanding claim for an earlier effective date. The Veteran contends an earlier effective date of February 13, 1981, should be awarded for the grant of service connection for PTSD. In reviewing the claim, however, the Board concludes that an earlier effective date is not warranted. In that regard, the record shows that in a November 2005 letter, the Veteran was notified that the October 2004 rating decision had granted service connection for PTSD, effective date of November 27, 2001. It was not until September 2014, that he filed a claim for an earlier effective date for the grant of service connection for PTSD. Because he did not file a notice of disagreement challenging the effective date assigned within a year of the notice provided, the October 2004 rating decision is final, and no direct appeal of the effective date is valid. There is no basis in law for a freestanding earlier effective date claim in matters that have already been addressed in a final rating decision. Rudd, supra. The Board is barred from revisiting the effective date assigned in the October 2004 decision, and any attempt to collaterally attack that decision must be made in a CUE motion. CUE Claim As noted above, the Veteran contends the October 2004 rating decision contained CUE in failing to assign an earlier effective date for the grant of service connection for PTSD, asserting that an effective date of February 13, 1981, should have been assigned for service connection for PTSD. However, after considering the procedural background of this case as well as the record, the Board concludes that there was no CUE in the October 2004 rating decision. Previous RO decisions that are final and binding will be accepted as correct in the absence of CUE; however, if the evidence establishes CUE in a prior final decision, such decision will be reversed or amended. A finding 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. § 3.105(a). Allegations of CUE must be pleaded with some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. See Disabled Am. Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). In determining whether a prior determination involves CUE, there is a three-prong test: (1) either the correct facts, as they were known at the time of the decision, 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. Damrel v. Brown, 6 Vet. App. 242 (1994). CUE is a very specific and rare kind of error. 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 (1993). An allegation of CUE is a collateral attack on an otherwise final rating decision by a VA RO. Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). 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, supra. 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 (1991). The Board initially notes that the Veteran pled his CUE allegation with specificity. In that regard, in a June 2016 letter submitted by his representative, he contended that the RO committed CUE in the October 2004 rating decision by failing to apply 38 C.F.R. §3.156(c). He claimed that 38 C.F.R. §3.156(c) was applicable because his service personnel file was not reviewed at the time of the 1981 rating decision, because the October 2004 rating decision listed as evidence: “Personnel File received June 10, 2002, from the National Personnel Records Center”, and also claimed that a 1971 unit history of the 10th Combat Aviation Battalion was not received until February 2005 from the Defense Personnel Records Image Retrieval System (DPRIS). By way of history, the Board notes that on February 13, 1981, the Veteran submitted a statement describing his behavior changes since returning from Vietnam. Thereafter, in March 1981, he submitted an Application for Compensation (VA Form 21-526), claiming service connection for “nerves”. In a September 1981 rating decision, the RO denied the Veteran’s claim for service connection for passive/aggressive personality structure with secondary reactive depression (including claims for post stress syndrome and residuals of Agent Orange exposure). The RO noted service medical records did not establish any chronic psychiatric condition, and noted that the VA examination in June 1981 described a personality disorder manifested by marked rationalizing defenses, high emotional tone, and dwelling on service experiences and attitude towards superiors. The Veteran did not appeal the September 1981 decision and it is final. On November 27, 2001, the Veteran filed a statement (VA 21-4138) in which he requested he be reevaluated for PTSD, noting that in 1980 he was diagnosed with PTSD by the VA Medical Center (VAMC), Jefferson Barracks, Missouri. He reported that when he applied for service connection in 1981, he was denied, and claimed he had new and material evidence and was seeing J.S. at the Vet Center for PTSD. In March 2002, the RO sent the Veteran a letter requesting new and material evidence showing PTSD was incurred or aggravated by service and requesting that he complete and return a stressor statement. In June 2002, a response to a Request for Information (VA 21-2101) was received in which it was noted the Veteran served in Vietnam from September 1970 to September 1971. Additionally, the Veteran’s service personnel records were received in June 2002. In a September 2002 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim for service connection for PTSD, and denied the claim to reopen. The RO noted that the Veteran had not responded to the letter requesting new and material evidence showing PTSD was incurred or aggravated by service and requesting he complete and return a stressor statement. The RO noted that the service department verified the Veteran served in the Republic of Vietnam, that service personnel records showed he was a helicopter mechanic, and that although he did receive awards during service, these were not considered to be combat related in order to concede in-service stressors. The RO also noted that the evidence of record did not show a confirmed diagnosis of PTSD which would permit a finding of service connection, and that the available evidence was insufficient to confirm that verifiable in-service stressors occurred. Thereafter, in October 2002, the Veteran submitted a statement claiming that in the Spring of 1981, he had been diagnosed with PTSD by a VA psychiatrist. In January 2004, the Veteran submitted a completed “Information in Support of Claim for Service Connection for PTSD”, in which he described his in-service stressor events. On a VA examination in May 2004, the diagnoses included chronic PTSD. It was noted that the Veteran reported his assignment in Vietnam was as a helicopter mechanic but that he also flew as door gunner. While his report described a number of traumatic experiences, one of most difficult aspects was that he was battalion armorer and in charge of the weapons room. In the October 2004 rating decision, the RO granted service connection for PTSD, effective from November 27, 2001, based in part on recent treatment records which confirmed a diagnosis of PTSD, and the VA examination in 2004 which linked the Veteran’s reported stressors to his PTSD. The RO noted that the effective date of November 27, 2001, was based on the date the Veteran filed his “reopened claim” and because he had “continuously prosecuted [his] claim from that date”. In considering the CUE claim, the Board notes that the regulation cited by the Veteran, 38 C.F.R. § 3.156(c), was amended in 2005, and under the pre-2005 version of the regulation, reconsideration based on newly received service department records essentially had to meet the “new and material evidence” standard. The Board notes, however, that the Veteran’s service personnel records were first associated with the claims file in June 2002, and in the September 2002 rating decision the RO acknowledged receipt and review of the personnel records, but denied the claim to reopen, essentially based on the lack of evidence of a diagnosis of PTSD, as well as personnel records not establishing a stressor and the Veteran not returning a stressor statement. The Veteran did not appeal the September 2002 rating decision. Because the service personnel records were considered in the September 2002 rating decision, which did not find them to be a basis for awarding service connection at that time, the October 2004 rating decision did not need to apply 38 C.F.R. § 3.156(c) a second time. The obligation to reconsider the claim in light of the receipt of service personnel records was completed in September 2002. With regard to the 1971 unit history, the Board notes that this was associated with the claims file in February 2005. Although the Veteran was not notified of his award of service connection for PTSD until November 2005, the rating decision awarding service connection for PTSD was actually promulgated in October 2014, several months prior to the receipt of the 1971 unit history in February 2015. Therefore, the information contained therein was not relevant to the Veteran’s claim as it did not corroborate his reported stressors. Therefore, the October 2004 rating decision did not contain CUE in failing to apply38 C.F.R. § 3.156(c). Rather, it appears that in the October 2004 rating decision, the RO applied 38 C.F.R. § 3.156(b) (2004) in assigning the effective date of November 27, 2001, as the record showed that within a year after the September 2002 rating decision, the Veteran submitted a statement indicating that he had been diagnosed with PTSD, treatment records showed a diagnosis of PTSD, and he submitted a stressor statement. In that regard, 38 C.F.R. § 3.156(b) (2004) provided that new and material evidence received prior to the expiration of the appeal period, will be considered as having been filed in connection with the claim which was pending. Thus, the Board concludes that in the October 2004 rating decision the statutory/regulatory provisions extant at that time were correctly applied. The Board notes that in the letter dated in June 2016 submitted by his representative, in support of his CUE claim, the Veteran also contended that in June 1981, the VA examiner noted he served in Vietnam, but never addressed his claimed Vietnam stressors, and that in the September 1981 rating decision, the RO did not consider service records relevant to his claimed stressors, noting that it was not until the October 2004 rating decision that VA received and reviewed the DPRIS information and conceded his stressor. The Veteran also contended he reported to the May 2004 VA examiner he was diagnosed with PTSD in 1981, and the VA examiner acknowledged he underwent a psychiatric examination in June 1981, and based on medical history and traumatic experiences in Vietnam, diagnosed chronic PTSD. The Board finds that these assertions by the Veteran do not establish CUE as the Veteran’s arguments are basically a disagreement with how the facts were weighed by prior adjudicators, as well as the October 2004 adjudicator. In this regard, a disagreement with how a prior adjudication evaluated the facts does not establish CUE. The Board therefore concludes that it was not clearly and unmistakably erroneous for the RO, in the October 2004 rating decision, to assign November 27, 2001, as the effective date for the grant of service connection for PTSD. In that regard, the Board concludes that the correct facts, as known at the time, were before the VA adjudicator, and the statutory and regulatory provisions extant at the time were correctly applied. Therefore, the allegations of CUE in the October 2004 rating decision are unsupported and the Veteran’s motion for revision or reversal of such decision must therefore be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Casula, Counsel