Citation Nr: 1807441 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-15 989A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than May 21, 2004, for the grant of service connection for PTSD. 3. Whether there was clear an unmistakable error (CUE) in a September 1994 rating decision denying service connection for PTSD. REPRESENTATION Appellant represented by: Attorney Karl A. Kazmierczak ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1964 to June 1984. He served in combat in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran's PTSD is characterized by occupational and social impairment, with deficiencies in most areas. 2. There was not a pending claim for service connection for PTSD at the time of the May 21, 2004, claim. 3. The correct facts for the issue of service connection for PTSD, as they were known at the time of the September 1994 decision, were before the RO, and the statutory or regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.10, 4.14, 4.21, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an effective date prior to May 21, 2004, for service connection for PTSD have not been met. 38 U.S.C. §§ 5110 (2012); 38 C.F.R. §§ 3.105, 3.400(b)(2) (2017). 3. The September 1994 rating decision that denied service connection for PTSD was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The duty to assist was fulfilled in an August 2010 letter to the Veteran. The resolution of the Veteran's appeal for an earlier effective date turns on the law as applied to the undisputed facts in the Veteran's claim regarding the date his claim was received and date his entitlement arose. As this issue turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the claim. Consequently, no further notice or development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). Nonetheless, a March 2011 letter regarding the duty to assist was sent to the Veteran in March 2011. In addition, VA's duties to notify and assist are not applicable to CUE claims. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). With respect to the duty to assist in this case, the Veteran's service treatment records (STRs), private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination in conjunction with his claim. Overall, the examiner provided well-reasoned rationales for the opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155 (2012). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2017). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2017). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is seeking an evaluation in excess of 70 percent for PTSD. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, a 70 percent rating. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, a 100 percent rating. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The record does not show that there has been treatment for PTSD since the Veteran filed his claim for an increased rating. The Veteran had a VA examination in December 2013. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, inability to establish and maintain effective relationships, suicidal ideation, and obsessional rituals which interfere with routine activities. The examiner observed that the Veteran was alert with a serious demeanor and was cooperative. He wore sunglasses during the examination and was casually dressed and neatly groomed. The Veteran does not meet the criteria for a 100 percent evaluation because the record does not show total occupational and social impairment due to PTSD. See 38 C.F.R. § 4.130, Diagnostic Code 9400. The record does not indicate that the Veteran has not been oriented to time, place, and person. Furthermore, the record does not demonstrate that he has had hallucinations or neglect of hygiene. The opinions of the VA examiner are given significant probative value because they were based on a thorough analysis of the Veteran's symptomatology. See Stefl, 21 Vet. App. at 124. Finally, in light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to staged ratings for his service-connected PTSD, as the Court indicated can be done in this type of case. Based upon the record, the Board finds that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that a veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the record does not reflect the Veteran is unemployable due to his service-connected PTSD. While the record demonstrates that there would be some interference with some job-related activities due to the service-connected disability, the record does not show that the Veteran is unemployable, and thus consideration of a TDIU is not warranted. III. Earlier Effective Date The Veteran is seeking an earlier effective for the grant of service connection for PTSD. An October 2004 rating decision granted service connection for PTSD, and assigned an effective date of May 21, 2004, based on the date that the claim was received. After the receipt of additional evidence, the RO issued a rating decision in May 2005 that continued the assigned 30 percent rating. The Veteran did not appeal the May 2005 rating decision, and it became final. The current claim for an earlier effective date for the grant of service connection for PTSD is a "freestanding" claim because the rating decision granting service connection became final. Therefore, the claim must be denied. In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court of Appeals for Veterans Claims (Court) ruled that such a "freestanding" claim "vitiates the rule of finality." A freestanding claim for an earlier effective date for service connection for PTSD seeks a benefit not provided by law. Therefore, the claim must be denied as a matter of law. IV. CUE The Veteran has argued that there was CUE in the September 1994 rating decision that denied service connection for PTSD. In determining whether a prior determination involves CUE, the Court has established a 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 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, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). If the evidence establishes CUE in a prior RO rating decision, the decision will be reversed or amended. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104(a), 3.105(a) (2017). CUE is a very specific and rare 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, a finding of CUE requires that the correct facts, as they were known at the time, were not before the 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). A determination of CUE 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). The Board notes that a claim of CUE 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. Fugo, 6 Vet. App. at 43-44. Therefore, 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, 231 (1991). The Veteran filed a claim of service connection for PTSD in August 1993. In August 1993 the Veteran had inpatient treatment for substance abuse at which he was diagnosed with PTSD with depression. It was noted that he had obvious symptoms of PTSD, and he was on medication for anxiety. Furthermore, it was noted that he had depression secondary to PTSD. At September 1993 VA treatment the Veteran was diagnosed with possible PTSD. The Veteran had an examination arranged by VA in January 1994. The examiner did not diagnose him with PTSD based on the examination and test results. The Veteran also had a VA examination in January 1994 at which time he was diagnosed with depressive disorder, NOS. The examiner felt that the Veteran did not have a diagnosis of PTSD. The Veteran's representative wrote in March 2017 that there was error in the September 1994 rating decision because the RO did not adjudicate whether the diagnosed depression was service connected. In February 2009, Court ruled that when a claimant seeks service connection for PTSD, such a claim must be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes, and the information submitted by the claimant or obtained by VA. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The representative wrote that under the Clemons decision, the diagnosed depression should have been considered. However, since the Clemons decision was issued after the September 1994 rating decision, there cannot be clear and unmistakable error due to Clemons. See Fugo, 6 Vet. App. at 43-44. Under the law as it existed at the time of the September 1994 rating decision, it was not error for the RO to not consider whether the diagnosed depression was related to service. In addition, a section of an October 2004 VA examination that with "C&P Final Report" and "Page: 2" at the top of the page that the Veteran's representative submitted on March 2, 2017 cannot be considered because it did not exist and was not of record at the time of the September 1994 rating decision. See id. In May 2017, the Veteran's representative wrote that the findings of the January 1994 examinations that the Veteran did not have PTSD were incorrect because they were based on the Veteran not having persistent avoidance. The representative continued that the record shows that this was incorrect and that the Veteran met the criteria of the DSM-III for PTSD. The medical conclusions of examiners and clinicians cannot constitute CUE. The September 1994 rating decision noted the diagnosis of PTSD from treatment and that there was no diagnosis from the January 1994 examinations. In denying the claim, the rating decision states that the evidence of record does not show a diagnosis of PTSD. The Board notes that this is a factually incorrect statement since, as noted earlier in the rating decision, there were treatment records showing a PTSD diagnosis. However, there were subsequent examinations with no diagnosis. It is not manifestly clear that the RO would have granted service connection in the September 1994 rating decision even if it had noted the diagnosis in its analysis. There were medical reports with different conclusions regarding whether the Veteran had PTSD. The Board cannot find CUE in the RO's denial of the claim because the RO could have weighed the competing evidence and determined that there was not a diagnosis of PTSD. See Fugo, 6 Vet. App. at 43-44. Finally, the Board notes that under current law, a diagnosis at any time during the claims period is sufficient for there to be a current disability for VA purposes. See Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). However, this standard did not exist at the September 1994 rating decision. There was not error under the law as it existed when the RO found that the Veteran did not have a diagnosis of PTSD based on the examination results that were then the most recent evidence of record. See Fugo, 6 Vet. App. at 43-44. There are no other grounds on which to find that the September 1994 rating decision contained CUE. The RO considered the facts as they were known, and there was not undebatable error based on the record and law that existed at the time. See Damrel, 6 Vet. App. at 245. ORDER An evaluation in excess of 70 percent for PTSD is denied. An effective date earlier than May 21, 2004, for the award of service connection for PTSD is denied. The Veteran's claim to reverse the September 1994 rating decision, that denied service connection for PTSD, based on CUE is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs