Citation Nr: 1824604 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 14-29 195A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether clear and unmistakable error (CUE) was committed in a February 1993 rating decision that assigned an effective date of August 7, 1991 for a grant of service connection for PTSD and assigned a disability evaluation thereof. 2. Whether CUE was committed in a January 1971 rating decision that denied service connection for a nervous condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Vang, Associate Counsel INTRODUCTION The Veteran had active service from January 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified in a travel Board hearing in October 2017 before the undersigned Veterans' Law Judge. A transcript of the proceeding is associated with the claims file. The Veteran has asserted several theories of CUE with respect to the assignment of an effective date of August 7, 1991 for his service-connected PTSD. However, as the Veteran's allegations encompass a February 1993 rating decision and a January 1971 rating decision, the Board will assess the case as two separate claims in order to adjudicate the case in the light most favorable to the Veteran. As noted below, the Veteran has not raised allegations of CUE in any other decisions and, as such, those decisions will not be addressed. FINDINGS OF FACT 1. In assigning an effective date of August 7, 1991 for a grant of service connection and disability evaluation for PTSD, the February 1993 rating 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. 2. In determining that service connection for a nervous condition was not warranted, the January 1971 rating 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. CONCLUSIONS OF LAW 1. The February 1993 rating decision that assigned an effective date of August 7, 1991 for a grant of service connection and disability evaluation for PTSD was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 2. The January 1971 rating decision that denied service connection for a nervous condition was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks an effective date earlier than August 7, 1991 for the grant of service connection and assignment of disability evaluation for his service-connected PTSD, on the basis of CUE. The Veterans Claims Assistance Act of 2000 (VCAA), and its implementing regulations, are not applicable to the adjudication of the claims because an allegation of CUE does not actually represent a "claim," but, rather, is a collateral attack on a final decision. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). I. Legal Criteria 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). 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). The United States Court of Veterans Appeals (the Court) has set forth a three-pronged test to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions existing at the time were incorrectly applied; (2) the error must be undebatable and of the sort of error that, 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 prior adjudication in question. Grover v. West, 12 Vet. App. 109, 112 (1999); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc) 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). A CUE claim must be based on the evidence in the record when the prior decision was rendered. Pierce v. Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001). 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). II. Analysis The Veteran presents several theories of CUE in support of his argument for entitlement to an earlier effective date for PTSD back to 1971. First, he asserts entitlement to an earlier effective date because there was evidence of mental health treatment in the 1970s and 1980s in the record (to include October 1971, June 1984, and March 1985 records). See April 2012 Statement; May 2014 Notice of Disagreement. Second, he asserts entitlement to an earlier effective date because a treating physician stated that his PTSD began in 1971. See May 2014 Notice of Disagreement. Finally, the Veteran asserts entitlement to an earlier effective date on the basis of presumptive service connection because an August 1971 medical record documented an impression of schizophrenic chronic paranoid type within 1 year after service. See October 2017 Hearing Transcript. Here, the Veteran's claims file contains multiple rating decisions addressing the issue of PTSD, but the Veteran has identified only two rating decisions in which he believes CUE was committed. Allegations of CUE must be pled with some degree of specificity. During the October 2017 hearing, the Veteran specifically alleged CUE in the January 1971 decision and specifically alleged CUE for the grant of an effective date of August 7, 1991 that was made in a February 1993 rating decision. Where there are multiple decisions, a failure to specify the dates of the decision being collaterally attacked renders the pleading of CUE insufficient. Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994). As the Veteran has not sufficiently identified any other decisions with the requisite specificity, the Board finds that the Veteran has sufficiently pled CUE only with respect to the January 1971 rating decision and the February 1993 rating decision. As such, discussion will be limited to those two decisions. The Board additionally notes that the January 1971 and February 1993 rating decisions are final because they were not appealed. Given the finality of these rating decisions, the assignment of an effective date earlier than August 7, 1991 for the award of service connection for PTSD is prohibited by law unless there is a showing of CUE in a previous decision. As a preliminary matter, the Board notes that service treatment records (STR) were not associated with the claims file until the February 1993 rating decision. See 38 C.F.R. § 3.156 (1993); see also George v. Shulkin, No. 16-1221, 2018 U.S. App. Vet. Claims LEXIS 130 (Vet. App. Feb. 5, 2018). Here, the Veteran has not made any allegations that there was CUE due to a failure to reconsider the claim due to newly associated STRs. Moreover, even if the Veteran had alleged CUE on this basis, STRs do not contain evidence relating to an unestablished fact (such as evidence of treatment or a diagnosis of PTSD in service) that would have manifestly changed the outcome of the decisions. As such, the Board finds that revision or remand for reconsideration is not warranted on this basis even if it had been specifically argued. a. February 1993 Rating Decision The Veteran asserts that the February 1993 rating decision that granted service connection and assigned a disability rating with an effective date of August 7, 1991 contained CUE. With respect to errors actually asserted by the Veteran, the Board will first examine the assertion that presumptive service connection should have been granted due to an August 1971 impression of schizophrenic chronic paranoid type. Here, the evidence does not show that the August 1971 record was not before the adjudicator at the time of the February 1993 decision. According to Gonzales v. West, 218 F.3d 1378, 1380 (Fed. Cir. 2000), ROs are not required to specifically mention in their rating decisions the evidence that they considered. Significantly, even if the August 1971 record was absent from the record at the time of the decision, the error would not have manifestly changed the outcome of the decision. 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. See Simmons v. West, 14 Vet. App. 84, 88 (2000). In this case, the remaining contemporaneous medical records did not show a diagnosis of schizophrenia and, instead, revealed diagnoses of personality disorders and PTSD. Additionally, a June 1992 VA examination found a diagnosis of PTSD. As there is evidence for and against, it is not undebatable that the claimed error would have manifestly changed the outcome. Notwithstanding the above reasons, the Board notes that the appropriate effective date would still have been August 7, 1991, the date the claim was filed because it was the later date. 38 C.F.R. § 3.400 (specifying that effective dates are assigned based on the date of receipt of the claim or the date entitlement arose, whichever is later). As such, CUE has not been established on this basis. Additionally, with respect to the argument that there was evidence of mental health treatment in the 1970s and 1980s in the record (to include October 1971, June 1984, and March 1985 records), the Board notes that there is no evidence showing that these facts were not before the adjudicator at the time of the decision. Indeed, the February 1993 decision expressly discusses some of this evidence. Thus, the Veteran is essentially alleging CUE on the basis that the evidence was improperly weighed and evaluated. Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). As such, CUE has not been established on this basis. Finally, the Veteran has asserted that CUE was committed because a June 2014 VA medical record by Dr. P.H. opined that the Veteran had been suffering from combat-related PTSD since 1970. However, a CUE claim must be based on the evidence in the record that existed at the time of the February 1993 decision. Pierce v. Principi, 240 F.3d 1348, 1353 (Fed. Cir. 2001). As Dr. P.H.'s opinion was not part of the record at the time of the decision, the Board finds that even if arguendo it were to meet the high threshold of being accepted as undebatable evidence, CUE has not been established on this basis. For these reasons, the Board finds that the February 1993 rating decision did not contain CUE, and the claim must be denied. b. January 1971 Rating Decision The Veteran asserts that the January 1971 rating decision that denied service connection for a nervous condition contained CUE. Though the Veteran has asserted that records established that he was hospitalized at for psychiatric symptoms in 1971, the Board notes that there is no evidence that the adjudicator failed to consider these records. See also Hauck v. Nicholson, 403 F.3d 1303 (Fed. Cir. 2005) (noting that rating decisions were not required to set forth in detail the factual bases for their decisions before the 1990 effective date of 38 U.S.C.A. § 5104(b)). Simply to allege CUE on the basis that previous adjudications improperly weighed and evaluated the evidence, or failed to apply the benefit-of-the-doubt doctrine can never rise to the stringent definition of CUE. Moreover, even if these hospitalization records were not before the adjudicator at the time of the decision, they would not have manifestly changed the outcome of the decision. Indeed, the 1971 hospitalization records identified by the Veteran did not establish a nexus between any symptoms and service. As there is no evidence that these records were not before the adjudicator and that any error would have manifestly changed the outcome, the Board finds that there was no CUE on this basis. The Veteran also alleges CUE because the record contains an August 1971 medical record noting an impression of schizophrenia within 1 year after service; an October 1971 hospitalization record for psychiatric symptoms; June 1984 and March 1985 letters from Dr. R.M. detailing psychiatric treatment; and a June 2014 opinion from Dr. P.H. stating that the Veteran's PTSD dates back to 1971. However, the January 1971 decision predates these records. As these facts were not before the adjudicator at the time of the January 1971 decision, the argument fails. Moreover, it was not undebatable at the time that the Veteran had a psychosis, schizophrenia, for he was in fact provided at that time with a psychiatric examination that did not arrive at this diagnosis. Accordingly, CUE is not found on this basis. For these reasons, the Board finds that the January 1971 rating decision did not contain CUE, and the claim must be denied. ORDER The motion to revise the February 1993 rating decision on the basis of CUE is denied. The motion to revise the January 1971 rating decision on the basis of CUE is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs