Citation Nr: 18155192 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 18-49 564 DATE: December 4, 2018 ORDER The motion to revise the March 2018 Board of Veterans’ Appeals (Board) decision on the basis of clear and unmistakable error (CUE) that denied an earlier effective date for service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT In denying an effective date earlier than December 6, 2007 for a grant of service connection for PTSD, the March 2018 Board decision was consistent with and reasonably supported by the evidence then of record and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. CONCLUSION OF LAW The March 2018 Board decision did not contain clear and unmistakable error. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 3.2600, 20.1400-11 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the moving party in this matter, had active military service from January 1963 to December 1966. The Veteran is unrepresented and has made a pro se claim. VA has a responsibility to fully and sympathetically develop claims, including pro se pleadings and CUE claims, to their optimum before determining if the pleading requirements are met. Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see also Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Richardson v. Nicholson, 20 Vet. App. 64 (2006) (pro se statements should have been given “full and sympathetic reading” as including claim for service connection for psychoneurosis). In July 2016, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. By way of background, the Veteran was originally denied entitlement to service connection for PTSD in an October 1997 rating decision. The Veteran did not appeal that decision within one year, and as a result, it became final. In January 2006, the Veteran made a new claim for service connection for PTSD. The VA Regional Office (RO) established service connection for PTSD in an August 2010 decision, and a 30 percent evaluation was assigned from December 6, 2007. In an October 2012 rating decision, the rating for PTSD with major depressive disorder and panic disorder was increased to 50 percent effective from May 17, 2011, and 100 percent effective from December 30, 2011. In March 2013, VA received the Veteran’s notice of disagreement with the effective date of his rating of 100 percent for PTSD. The Board denied the Veteran’s claim for an earlier effective date of 1997 for the award of a 100-percent rating for PTSD in February 2017. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court or CAVC); and in October 2017, the Secretary and the Veteran filed a Joint Motion for Remand (JMR) which was granted by the CAVC in a November 2017 Order. The case was remanded for the Board to determine whether the Veteran’s submissions in January and February 2007 could warrant an effective date prior to December 30, 2011, for the assignment of a 100 percent rating for PTSD. In March 2018, the Board issued a new decision subsequent to the CAVC JMR directives, finding that entitlement to an effective date earlier than December 6, 2007 for the grant of service connection for PTSD was in effect a freestanding claim, and thus that claim was dismissed. In addition, the Board found the Veteran was entitled to an earlier effective date of July 27, 2010 for the assignment of his 100 percent rating, a determination that is not at issue in this CUE decision. The Veteran made an initial claim for service connection for PTSD in January 1997 that was denied in an October 1997 rating decision. As discussed previously, that rating decision was not appealed within a year and is considered final. The Board considered that October 1997 rating decision as part of an appeal decided in March 2018, which in pertinent part dismissed an earlier effective date claim for the Veteran’s PTSD. When a Board decision affirms an RO decision, any alleged errors made in the RO decision are treated as subsumed by the Board decision. 38 C.F.R. § 20.1104. After being subsumed, the RO decision cannot be challenged using a CUE claim. Instead, a CUE motion must be filed challenging the Board decision that subsumed the RO decision. See 38 U.S.C. §§ 5109A, 7104(b); Brown v. West, 203 F.3d 1378, 1380-82 (Fed. Cir. 2000). Because the Board effectively subsumed the previous rating decisions regarding PTSD in its March 2018 decision, the Veteran’s CUE claim has been recharacterized as noted above as a motion for CUE that is challenging a Board decision. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran’s CUE claim, the United States Court of Appeals for Veterans Claims (Court) has specifically held that the VCAA has no application to allegations of CUE as a matter of law, regardless of whether the Board or RO issued the earlier decision in question. The VCAA does not apply to CUE claims or motions because they are not claims for benefits, but, rather, are a collateral attack on a final decision. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); Parker v. Principi, 15 Vet. App. 407 (2002); see also 38 U.S.C. §§ 5109A (a); 7111(a); 38 C.F.R. §§ 20.1400-20.1411. Legal Criteria for CUE Previous determinations that are final and binding (including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues) will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C. §§ 5109A, 7105(c), 7111(a) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.1403 (2017). A revision based on clear and unmistakable error is the only way to overcome the finality of a prior decision on the same issue and obtain an effective date that is earlier than the date of that prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.104, 3.105, 3.2600, 20.1400-11. The appellant bears an “extra-heavy burden” when moving or requesting revision of a prior final decision based on CUE, as “[a] final decision is entitled to a strong presumption of validity.” Berger v. Brown, 10 Vet. App. 166, 169 (1997). However, the Board also notes that because the Veteran is unrepresented in this motion, that it is to read pro se pleadings sympathetically or “liberally.” Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. An assertion that the adjudicators had “improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.” Fugo v. Brown, 6 Vet. App. 40 (1993). Thus, even where 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, [CUE]. Id. at 43-44. The failure to fulfill the duty to assist also cannot constitute CUE. Crippen v. Brown, 9 Vet. App. 412, 424 (1996). The Court has established a three-prong test defining CUE, which is as follows: (1) 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; (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 adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc). “In order for there to be a valid claim of [CUE],... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.” Id. See also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994). Generally, CUE must be pled 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, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997). The record in the appeal to be reviewed for CUE is the record and law that existed at the time of the prior rating decision, not additional evidence submitted or otherwise obtained after the fact. Pierce v. Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001). A finding of CUE must be based solely on the evidence of record at the time of the decision in question. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). When there is evidence both favorable and unfavorable on the issue, it is impossible for a Veteran to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet. App. 84, 88 (2000). The Board has original jurisdiction over motions to revise prior Board decisions. 38 U.S.C. § 7111; 38 C.F.R. § 20.1400-11. Because that October 1997 rating decision was subsumed by the Board decision of March 16, 2018, as discussed above, the Board takes jurisdiction of the Veteran’s assertion of CUE in his original denial of service connection for his claimed PTSD. The Board also notes that while there is a CAVC JMR in the procedural and legal history of this motion, the Court did not rule on the specific issue that the Veteran has raised in his motion, and thus the March 2018 Board decision is not considered subsumed by the earlier CAVC JMR. See Winsett v. Principi, 341 F.3d 1329 (Fed. Cir. 2003); Andre v. Principi, 301 F.3d 1354, 1351 (Fed. Cir. 2002) (preclusive effect of res judicata bars from refiling a specific theory of CUE that has already been adjudicated); 38 C.F.R. §§ 20.1400(b)(2), 20.1409(d). In addition, because the Veteran’s assertion of CUE is against a Board decision of March 2018, vice an RO decision, 38 C.F.R. § 20.1403 also specifically excludes a changed medical diagnosis as the basis for a CUE claim. If a new medical diagnosis exists that “corrects” an earlier diagnosis that was considered in a prior final Board decision, the fact that medical knowledge changed or advanced after the decision does not mean the facts at the time were incorrect. It merely establishes that the new information was not of record at the time of the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-37 (1993). Additionally, 38 C.F.R. § 20.1403 excludes changes in interpretation of a statute or regulation as the basis for possible CUE in a Board decision. If the Board otherwise correctly applied the statute or regulation as it was interpreted at the time, the fact that the interpretation changed after the decision does not result in CUE. Jordan (Timothy) v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); Disabled Am. Veterans v. Gober, 234 F.3d 682, 697-98 (Fed. Cir. 2000) (“The new interpretation of a statute can only retroactively effect decisions still open on direct review, not those decisions that are final.’); VAOPGCPREC 25-95 (Dec. 6, 1995) VACOPGCPREC 9-94 (Mar. 2, 1994). CUE motions are not “appeals,” so they are not subject to the Parts 19 or 20 of Title 38 of the C.F.R. regarding the processing of appeals, and the benefit-of-the-doubt rule under 38 U.S.C. § 5107(b) does not apply. 38 C.F.R. §§ 20.1402, 20.1411. Whether there was clear and unmistakable error (CUE) in a March 2018 Board decision that denied an earlier effective date for service-connected posttraumatic stress disorder (PTSD) The Veteran contends his effective date for service connection for PTSD, currently December 6, 2007, should be earlier because of clear and unmistakable error (CUE) in the July 1997 VA examination and the October 1997 rating decision which denied service connection at the time. The Veteran moves that there was CUE when the October 1997 rating decision was wrongly decided because the July 1997 VA examination was conducted by an unqualified examiner who did not fully consider the Veteran’s medical history. Specifically, the Veteran asserts that the denial was flawed because the examiner was a psychologist and “not a licensed medical doctor.” The Veteran also asserted that the examiner did not consider the Veteran’s medical history in her evaluation of him, “that they didn’t even look at my medical records.” First Assertion The Board will first address the Veteran’s contention that the VA examiner for the July 1997 examination was CUE because she was a psychologist and “not a licensed medical doctor.” An adequate VA examiner is one who is able to provide “competent medical evidence” under 38 C.F.R. § 3.159(a)(1) (1996). The Court has held that VA satisfied its duty to assist in a case where a nurse practitioner performed the VA examination as a nurse practitioner is competent to provide medical evidence. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). “VA benefits from a presumption that it has properly chosen a person qualified to provide a medical opinion in a particular case.” Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)); Wise v. Shinseki, 26 Vet. App. 517, 524-27 (2014). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks, 716 F.3d at 585 (“Viewed correctly, the presumption [of competence] is not about the person or a job title; it is about the process.”). Thus, absent clear evidence sufficient to rebut the presumption of competence, the fact that a person was chosen by VA to provide an opinion generally assures that person’s competence to provide the requested opinion. Sickels, 643 F.3d at 1366. A discussion of examiner competency is generally unnecessary unless raised by the appellant. Furthermore, the Board is entitled to assume the competence of a VA examiner. See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (“[T]he Board implicitly accepted [the VA examiner’s] competency by accepting and relying upon the conclusions in her opinion.”), aff’d, 232 F.3d 908 (Fed. Cir. 2000). Further, the “appellant bears the burden of persuasion on appeals to this Court to show that such reliance was in error.” Id.; see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (“The [presumption of regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary.”). Also, the Board notes that case law does not require that VA must have first established an examiner’s qualifications before assigning a medical examiner’s opinion probative value. Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). The Board notes the identification of the VA examiner in the July 1997 examination report to be a licensed VA psychologist, and the Board notes the Veteran has provided no specific reason as to why this VA psychologist was not qualified to perform a VA psychological examination. Medical evidence is not limited to doctors. See Cox v. Nicholson, 20 Vet. App. 563 (2007) (noting that there is no requirement that medical examinations be conducted by physicians only, and that the issue involves whether the individual has the types of education and clinical training to evaluate the medical issue at hand). At the time of the Veteran’s initial claim for PTSD, made in January 1997, the 1996 version of the Code of Federal Regulations was in effect. The pertinent regulation regarding service connection relating to PTSD specifically denoted: “[s]ervice connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor.” 38 C.F.R. § 3.304(f) (1996). The Board notes that in the pertinent regulation of the time that no specification as to the qualification of the examiner specific to a PTSD diagnosis was noted. The Board notes that regulation has changed since the time of the Veteran’s initial PTSD examination in July 1997. The version of 38 C.F.R. § 3.304(f)(3) relating to PTSD that took effect on July 13, 2010 denotes: “If a stressor claimed by a Veteran is related to the Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.” 38 C.F.R. § 3.304(f)(3) (2010) (emphasis added). Even if, arguendo, the Board were to consider that changed language, the VA examiner’s qualification, that of a licensed psychologist, is still within the regulation. The provisions of this amendment apply to applications for service connection for PTSD that are appealed to the Board on or after July 13, 2010, but have not yet been decided by such date. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010). Thus, the Board finds that the examiner for the July 1997 VA PTSD examination to be qualified for the tasks assigned to her. To revise a final prior VA decision, the movant must show based on the record and the law at the time, the error was undebatable. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc). For an error of fact or law to be undebatable, “no reasonable factfinder” could have come to the same conclusion that either the RO or the Board did based on the evidence as it existed at that time. Joyce v. Nicholson, 19 Vet. App. 36, 48 (2005). Here, the movant has provided no specific facts as to why the VA licensed psychologist was unqualified to perform the examination, other than the fact the examiner was not a medical doctor. The Board finds that the selection of the psychologist vice a medical doctor such as a psychiatrist would not have manifestly changed the outcome of the examination. Russell at 313-314. Considering the standard of review for CUE, that but for undebatable error of fact or law, the result would have been manifestly different, the Board thus finds that assertion of an unqualified examiner to be insufficient to sustain an assertion of CUE. 38 C.F.R. § 20.1403. The fact that the July 1997 examiner was a psychologist rather than a medical doctor is an appropriate decision for VA in the conduct of the provided examination, and there is no evidence in law or fact that a different examiner who happened to be a medical doctor vice a psychologist would have changed the outcome of the VA examination. Second Assertion The Veteran has moved that the October 1997 rating decision that denied entitlement to service connection for PTSD was improperly decided because of CUE in that the July 1997 VA psychologist who conducted the examination and the VA rating official who determined the negative rating decision did not consider all of the records that the Veteran believes would have led to a PTSD diagnosis, with service connection to follow by the Veteran’s assumption. At the time of the VA rating decision and examination at issue, in 1997, the 1996 Code of Federal Regulations was in effect. 38 C.F.R. § 3.159(b) and (c), in pertinent part, specified: [w]hen information sufficient to identify and locate necessary evidence is of record, the Department of Veterans Affairs shall assist a claimant by requesting, directly from the source, existing evidence which is either in the custody of military authorities or maintained by another Federal agency.... Should its efforts to obtain evidence prove unsuccessful for any reason which the claimant could rectify, the Department of Veterans Affairs shall so notify the claimant and advise him or her that the ultimate responsibility for furnishing evidence rests with the claimant. 38 C.F.R. § 3.159 (1996). To fulfill its duty as defined at the time, the VA regional office sent the Veteran a letter dated April 15, 1997 noting his claim for entitlement to service connection for PTSD but asking for additional information. The letter specifically asked for the Veteran’s “personal description of the traumatic events and subsequent changes in [his] behavior.” To that end, the letter to the Veteran included enclosures to document post-service employment history and post-service treatment history. VA specifically noted in that letter: “[w]e must have specific answers to the above questions to take further action on [the Veteran’s] claim for compensation.” VA, on its end, requested information from the National Personnel Records Center (NPRC) on a VA form 21-3101 dated February 1997 seeking the Veteran’s personnel and medical files from service, to include units of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decorations, and official travel outside the United States. On June 5, 1997, the NPRC responded by providing a complete set of the Veteran’s service personnel records and service medical records encompassing his entire period of active service from January 1963 to December 1966. As noted earlier in this decision, VA provided a PTSD examination in July 1997 and the examiner’s report was entered into the claims file on August 15, 1997. The examiner indicated she made “a careful review of the C-file” of the Veteran on her report. On October 3, 1997, the RO issued its rating decision denying the Veteran’s claim for service connection of PTSD. In its list of evidence, the rating official noted the July 1997 VA examination referenced above, the service personnel and medical records obtained from the NPRC and present in the claims file, a statement from a VA social worker dated December 1996 who had treated the Veteran’s initial complaints, and reference to the April 15, 1997 letter to the Veteran. The rating official noted the Veteran never responded to that April 15, 1997 VA letter asking for information on in-service incidents which he believed to have caused his condition. The Board notes that in later correspondence to VA that the Veteran acknowledges receipt of the April 1997 VA letter and also that he did not respond to it at the time. The rating official did refer to the VA examiner’s medical report dated August 1997 in noting the Veteran’s description of his stressors, but this rating official also noted the VA psychologist examiner’s judgment that the Veteran did not meet diagnostic criteria to establish a diagnosis for PTSD under DSM-IV, which was in effect at the time of the claim. The RO’s adjudicator emphasized, per the statements of the VA examiner in her report, that the Veteran’s reported stressors were not clear enough to meet the DSM-IV criteria, and that there was no requisite indication of helplessness or horror following any discrete event, nor any of the avoidance phenomena characteristic of PTSD at the time. The Veteran asserts the October 1997 rating decision and the July 1997 VA examination were products of CUE because he has stated he had PTSD at the time. His rationale for the CUE assertion was that the July 1997 VA examiner had noted in her report that the Veteran had an unremarkable medical history during his tour of duty, and that he actually had suffered multiple injuries in an accident. The Board notes that the Veteran’s entire service treatment records were present in the claims file at the time of the July 1997 examination, and that for his entire period of active service from January 1963 to December 1966, there were no mental health related complaints, disorders, symptoms, or other related observations present in those records. The Board does observe that on January 1, 1965 that the Veteran was aboard his assigned Navy ship, the destroyer USS Porterfield (DD 682), and was suntanning on the fantail of the ship when a wave washed over the fantail, pushing the Veteran against metal structures on the deck, resulting in back and abdominal contusions and lacerations. The service treatment records indicate the Veteran was treated for those injuries and returned to full duty 11 days later. No psychological effects or issues are noted in the service treatment records relating to that January 1965 incident. The Board finds that the Veteran’s assertions of failure to review the medical history during his July 1997 VA examination and October 1997 rating decision are not CUE, for multiple reasons. First, the three-prong test for determining CUE fails because the correct facts, as they were known at the time, were indeed before the examiner and the adjudicator, who applied the appropriate statutory and regulatory directives. Russell v. Principi, 3 Vet. App. 310, 314 (1992) (emphasis added). The Board notes that an asserted failure to evaluate and interpret correctly the evidence is not clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994). “In order for there to be a valid claim of [CUE],... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.” Id. See also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An assertion that the adjudicators had “improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.” Fugo v. Brown, 6 Vet. App. 40 (1993). Because the asserted error is not undebatable, and therefore would not have not manifestly changed the outcome given the record and the law that existed at the time, there cannot be a finding of CUE. See Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 314. The Board also notes, arguendo, that even if the record were determined to be incomplete, that an incomplete record, factually correct in all other respects, is not CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). The reasoning for this exclusion is that it is unknown what evidence would have been developed but for the breach, so the breach itself cannot be “outcome-determinative.” Id. Furthermore, because the Veteran’s assertion of CUE is against a Board decision that has subsumed an RO decision, 38 C.F.R. § 20.1403 also specifically excludes a changed medical diagnosis as the basis for a CUE claim. If a new medical diagnosis exists that “corrects” an earlier diagnosis that was considered in a prior final Board decision, the fact that medical knowledge changed or advanced after the decision does not mean the facts at the time were incorrect. It merely establishes that the new information was not of record at the time of the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-37 (1993). The facts are that the Veteran was later diagnosed with PTSD by a VA clinical psychologist not earlier than December 2007, with supporting statements from other VA psychiatrists, psychologists, and social workers, along with multiple statements of stressors submitted by the Veteran which resulted in the establishment of service connection in August 2010. The Board acknowledges that for the Veteran’s claim of PTSD, the difference between the VA examination of July 1997 and various VA diagnoses of PTSD commencing in December 2007 constitutes a change of diagnosis, but it does not reach the level of clear and unmistakable error that would change the findings of the July 1997 VA examination and the October 1997 rating decision. 38 C.F.R. § 20.1403; Porter, 5 Vet. App. at 237. Conclusion The Board finds the March 2018 Board adjudicators that made the decision denying an effective date earlier than December 6, 2007 for the Veteran’s service-connected PTSD had access to all of the Veteran’s records at the time, satisfying the first prong of the test to determine whether CUE was reached in a prior determination, that the correct facts as they were known at the time were before the adjudicator. Regarding the second and third prongs, the Board also finds that the Veteran, who bore the burden of proof in this motion for CUE, failed to show that the errors asserted were undebatable and would have manifestly changed the outcome otherwise at the time of the original decision, to include whether the claimed CUE were based on the record and the law that existed at the time of the prior adjudication. Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F. 3d 1378 (Fed. Cir. 1999). A claim of CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo v. Brown, 6 Vet. App. 40 (1993). As explained above, the March 2018 Board decision weighed the evidence against existing and appropriate law and regulation to make its determination that denied an effective date earlier than December 6, 2007 for the Veteran’s service-connected PTSD. Disagreements as to how facts are weighed do not constitute CUE. 38 C.F.R. § 20.1403 (d); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). CONTINUED ON NEXT PAGE Therefore, the Board finds that the March 2018 Board decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect, to include the subsumed rating decision of October 1997. As such, the Board finds that the Veteran fails to establish factual or legal error rising to the level of CUE in the March 2018 Board decision that denied the claim of an effective date earlier than December 6, 2007 for the Veteran’s service-connected PTSD. Hence, the criteria have not been met for reversing or revising that prior decision on the basis of CUE. The Board notes the benefit-of-the-doubt rule is not applicable in assessing a CUE motion. See Andrews v. Principi, 18 Vet. App. 176, 177 (2004) (citing Russell, 3 Vet. App. at 313.) MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel