Citation Nr: 18155102 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-52 317 DATE: December 4, 2018 ORDER Entitlement to a date of service connection prior to November 27, 2013, for posttraumatic stress disorder (PTSD) on the basis of clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. The August 1993 rating decision denied service connection for PTSD based on a finding of a lack of credible, verified stressor events, which meant there could be no valid diagnosis of PTSD. 2. The law and regulations extant at the time of the August 1993 were not clearly and unmistakably misapplied, and the correct facts were known. CONCLUSION OF LAW The criteria for establishing CUE in the August 1993 rating decision have not been met; no earlier effective date is warranted. 38 U.S.C. §5110, 7105 (2012); 38 C.F.R. § 3.105 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Army from October 1970 to September 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran alleges that the RO committed CUE in assigning an effective date of November 27, 2013m for service connection of PTSD; he argued that a claim for PTSD had remained open and unadjudicated since an August 1993 rating decision had denied service connection for polysubstance abuse with PTSD symptoms. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when pointed out leads to the inescapable conclusion that if not for that error, the outcome would have been different. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412 (1996). CUE must be made on the basis of the law and evidence at the time of the decision at issue. Porter v. Brown, 5 Vet. App. 233 (1993). A determination that a prior determination involved CUE involves the following three-prong test: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992). The Veteran argues that the RO substituted a polysubstance abuse diagnosis for a PTSD diagnosis based on a bias against drug use, and to avoid paying benefits because of the misconduct etiology of the polysubstance abuse. He maintains that the correct facts as they were known at the time reflect a diagnosis of PTSD by the December 1992 VA examiner, and that but for the error of considering the wrong diagnosis, the benefit would have been granted. The Board disagrees. The RO did not simply substitute a diagnosis; they weighed all the evidence of record and determined that the stressor events reported by the Veteran did not occur as reported. Relying on test results indicating exaggeration, statements that were on their face inconsistent with official duties, and permissible inferences from admitted willful misconduct, the RO in August 1993 determined that a required element of service connection—a credible stressor—was not met. There could not, therefore, be a valid diagnosis of PTSD, and so the label on the claimed and denied psychiatric disorder required changing. Regardless of the name, there was only a single psychiatric condition claimed in both decisions. In the former, the evidence was weighed and found lacking. In the latter, the standard under 38 C.F.R. § 3.304(f) was relaxed (effective July 2010), and the evidence was found sufficient. The difference in outcome was not due to CUE, as weighing of evidence cannot constitute such. The claim is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel