Citation Nr: 18157458 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-47 182 DATE: December 12, 2018 ORDER Clear and unmistakable error (CUE) exists stemming from a May 1, 2001 rating decision that denied entitlement to service connection for posttraumatic stress disorder (PTSD) and service connection for PTSD is granted from December 27, 1998. FINDINGS OF FACT 1. In a final rating decision dated May 2001, the regional office (RO) denied service connection for PTSD finding that there was no evidence of a current diagnosis of PTSD. 2. The Veteran had a diagnosis of PTSD while in service and applied for service connection for PTSD while she was still in service; therefore, the Veteran’s claim for PTSD should have been granted under 38 C.F.R. 3.304(f)(1) effective December 27, 1998, the date after she separated from service. Thus, there was an error of law in the May 2001 rating decision. CONCLUSION OF LAW The May 2001 rating decision contained CUE in denying service connection for PTSD, which under the extant law and regulations should have been granted effective December 27, 1998. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Navy from December 1994 to December 1998. The Board notes that the Veteran has a pending appeal to the Board for the issues of entitlement to service connection for temporomandibular joint dysfunction and for a scar of the left little finger. The Veteran has requested a hearing on these issues and her request is still pending. Therefore, these issues are not properly before the Board. CLEAR AND UNMISTAKABLE ERROR CLAIMS Through a rating decision dated December 2015, the Veteran was awarded service connection for PTSD effective April 1, 2015, the date of her most recent application. Through a notice of disagreement dated March 2016, the Veteran asserted that she should be awarded an earlier effective date back to the date of her original application, in November 1998, because the rating decision in May 2001 that denied her PTSD was a “clear error” given all of the medical evidence in the file documenting her diagnosis of PTSD. Previous determinations which 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. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error 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). To revise a prior final VA decision: (1) either the correct facts known at the time of the decision were not before the adjudicator, or the law as it existed at the time of the decision was incorrectly applied—the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated; (2) based on the record and law that existed at the time, the error was undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made; and (3) but for the error, the outcome would have been manifestly different. Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999). Only evidence that was in the claims file at the time of the challenged decision may be considered. Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (holding that “evidence” in 38 U.S.C. § 5109A(a) is limited to evidence that was of record at the time of the challenged RO decision). The Veteran asserts that the medical evidence in the file at the time of the May 2001 rating decision was sufficient to render a favorable decision on the issue of entitlement to service connection for PTSD. The evidence of record at the time of the May 2001 includes a Medical Board report from May 1997 that indicates that the Veteran had a diagnosis of PTSD, her symptoms preclude further useful military activity, the symptoms did not exist prior to enlistment, and that the Veteran should continue to seek treatment. While there is no further treatment related to PTSD in the file, the Veteran clearly had a diagnosis of PTSD while in service. Further, she was granted vocational rehabilitation effective July 1997 due to her PTSD and applied for service connection while still serving prior to her discharge in December 1998. The May 2001 rating decision denied the claim for service connection for PTSD because there was no evidence of the Veteran’s then-current symptoms of PTSD. However, the Board notes that 38 C.F.R. 3.304(f)(1) allows lay statements alone to support a claim for PTSD if the Veteran has 1) a diagnosis of PTSD while in-service; 2) a stressor related to her service; and 3) the stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service. The Board finds that the evidence available at the time clearly and unmistakably supports a favorable finding under 38 C.F.R. 3.304(f)(1). The Veteran clearly had a diagnosis of PTSD while in-service, she was sexually assaulted while in-service which became her “stressor”, her stressor is related to her time in-service, and she experienced symptoms due to her PTSD. In light of the above, the Board finds that the May 2001 incorrectly applied the criteria in 3.304(f)(1); that the error is undebatable; and further, that but for the error, the Veteran would have been granted service connection for PTSD with an effective date of December 27, 1998—the day following her separation from service. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Accordingly, the May 2001 decision contained CUE that has not been corrected by any subsequent VA action, and an effective date of December 27, 2018, for the grant of service connection for PTSD must be granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock