Citation Nr: 18115437 Decision Date: 07/03/18 Archive Date: 07/02/18 DOCKET NO. 14-09 192 DATE: July 3, 2018 ORDER As there was clear and unmistakable error (CUE) in the November 27, 1991 rating decision which denied service connection for posttraumatic stress disorder (PTSD), that decision is reversed and amended to award service connection for PTSD, effective from January 16, 1985. REMANDED Entitlement to an effective date earlier than May 20, 2009 for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. A claim of service connection for a psychiatric disability (characterized as residuals of a head injury) was initially denied in a May 1982 Board decision on the basis that the Veteran’s diagnosed personality disorder in service was a developmental disorder not subject to service connection and that his acquired psychiatric disability was not incurred in service. 2. An application to reopen the claim of service connection for a psychiatric disability was received on January 16, 1985; although acknowledged by the agency of original jurisdiction (AOJ) by way of a March 1985 letter, the January 1985 claim was not adjudicated on the merits until a November 27, 1991 rating decision, in which the AOJ denied the claim of service connection for a psychiatric disability (identified as schizoid personality and PTSD) on the basis that schizoid personality was a constitutional or developmental abnormality not subject to service connection and that the Veteran’s PTSD was not incurred in service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 3. The November 1991 rating decision which denied the claim of service connection for PTSD did not consider the correct evidence as it then existed and the outcome of that decision would have been manifestly different in the absence of that error. 4. There is no evidence of any unadjudicated formal or informal application to reopen the claim of service connection for a psychiatric disability after the May 1982 Board decision, but prior to January 16, 1985. CONCLUSIONS OF LAW 1. CUE in the AOJ’s November 27, 1991 rating decision that denied service connection for PTSD has been demonstrated. 38 C.F.R. §§ 3.105 (a), 4.125 (1991), 4.126 (1991). 2. The criteria for an effective date of January 16, 1985, but no earlier, for the award of service connection for PTSD, on the basis of CUE in the November 27, 1991 rating decision, are met. 38 U.S.C. §§ 5107(b), 5110(a), 7104(b), 7105(d)(3); 5110 (a); 38 C.F.R. §§ 3.102, 3.104, 3.155 (in effect prior to March 24, 2015), 3.156(a)-(b), 3.400, 20.302, 20.1100(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to March 1975. These matters come before the Board of Veterans’ Appeals (Board) from March 2010 and November 2011 rating decisions. The Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. An informal hearing conference with a DRO was conducted in December 2013 in lieu of a formal hearing and a report of that conference is associated with the Veteran’s claims file. The Veteran testified before the undersigned Veterans Law Judge at a February 2018 hearing and a transcript of the hearing is associated with his claims file. Entitlement to an effective date earlier than May 20, 2009 for the award of service connection for PTSD, to include on the basis of CUE in a November 27, 1991 rating decision which denied service connection for PTSD. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). As an initial matter, the Board notes that the evidence reflects that the Veteran applied for Social Security Administration (SSA) disability benefits. The Board is remanding the matter of entitlement to an earlier effective date for the award of a TDIU to, in part, attempt to obtain any outstanding SSA disability records. Where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if potentially relevant. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (“The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records”). With respect to the appeal for an earlier effective date for the award of service connection for PTSD, there is no indication or allegation that there are any outstanding records among the Veteran’s SSA records that could prevent any prior decision from becoming final or that any information contained in the SSA records could otherwise show that the Veteran filed an earlier claim for service connection for a psychiatric disability. Thus, as any SSA records are not relevant to the issue of entitlement to an earlier effective date for the award of service connection for PTSD, VA has no duty to obtain any SSA disability records prior to adjudicating this issue. In this case, the Veteran contends that he is entitled to an earlier effective date for the award of service connection for PTSD on the basis of CUE in a November 1991 rating decision which denied service connection for PTSD. The Board finds that there was CUE in the November 1991 rating decision and that an effective date of January 16, 1985, but no earlier, is warranted for the award of service connection for PTSD. The current effective date for the award of service connection for PTSD is May 20, 2009, the date that the Veteran’s most recent application to reopen the claim of service connection for a psychiatric disability was received. As pertinent to this case, the Veteran’s initial claim of service connection for a psychiatric disability (characterized as residuals of a head injury) was denied in a May 1982 Board decision on the basis that his diagnosed personality disorder in service was a developmental disorder not subject to service connection and that his acquired psychiatric disability was not incurred in service. Specifically, the Board explained that although the Veteran reported that he sustained a head injury in a motor vehicle accident in service and he was diagnosed as having a personality disorder in service during an examination that was conducted following the accident, the report of the examination did not make any reference to an accident or a head injury. The Board noted that a personality disorder is a developmental disorder that is not considered a disease or injury for VA compensation purposes and that the Veteran’s acquired psychoneurotic disorder was first shown after service. Overall, there was no evidence of any significant head trauma in service that would be expected to cause a psychiatric disorder, and the evidence did not show any current organic or psychiatric residuals of a head injury. The Board’s decision was final when issued. See 38 U.S.C. § 7104 (b); 38 C.F.R § 20.1100 (a) (a Board decision is final on the date stamped on the face of the decision). In a January 1985 statement (VA Form 21-4138), the Veteran requested to “amend [his] claim for service connection of [his] present nervous disorder as a direct result of service.” He explained that he was involved in a motor vehicle accident during active service and that he subsequently began to experience psychiatric symptomatology. He attempted suicide on several occasions and he felt that his “nervous disorder had its inception in service.” This statement was received by VA on January 16, 1985. As the Veteran described symptoms of a psychiatric disability, his claim sufficiently identified the benefit sought and the January 1985 VA Form 21-4138 is considered an informal application to reopen the claim of service connection for a psychiatric disability. The Veteran’s January 1985 claim was acknowledged by the AOJ by way of a March 1985 letter, in which the AOJ explained that the claim was a duplicate of the Veteran’s previously denied claim of service connection and that if he wished to reopen his claim, he needed to submit evidence not previously considered that would tend to support his allegations. The AOJ did not thereafter actually adjudicate the Veteran’s January 1985 claim until a November 27, 1991 rating decision. In that decision, the AOJ characterized the Veteran’s claim as a claim of service connection for schizoid personality and PTSD. The AOJ denied the claim and explained that although the Veteran was diagnosed as having schizoid personality and “PTSD secondary to car crash,” schizoid personality was a constitutional or developmental abnormality not subject to service connection. Also, there was no evidence of a car crash in his service treatment records. The Veteran was notified of the AOJ’s November 1991 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the November 1991 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Moreover, no exception to the finality of the May 1982 Board decision or November 1991 rating decision applies in this case. The Board acknowledges that the Veteran’s service personnel records were associated with the claims file subsequent to these decisions. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156 (c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156 (c)(1)(i). In this case, the newly-associated service personnel records are not relevant to the claim of service connection for a psychiatric disability, as they do not address whether there were any in-service psychiatric stressors or complaints associated with a psychiatric disability, or whether there is any relationship between the Veteran’s claimed disability and service. Accordingly, reconsideration of the Veteran’s claim under 38 C.F.R. § 3.156 (c) is not required based upon the additionally-received service personnel records. The Veteran contends that he is entitled to an earlier effective date for the award of service connection for PTSD because there was CUE in the AOJ’s November 1991 rating decision. In this regard, a previous AOJ determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes CUE, the prior decision will be reversed or amended. See 38 C.F.R. § 3.105 (a). 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has established a three-pronged test, each of which must be met before CUE is established: either (1) 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 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 prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)). In order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). In the Veteran’s August 2010 notice of disagreement (VA Form 21-4138), in a December 2011 letter from his former representative, and during the February 2018 Board hearing, it was argued that there was CUE in the November 1991 rating decision because although the AOJ found that there was no evidence of a motor vehicle accident in service, a police accident report was in the Veteran’s claims file at the time of the November 1991 decision which confirmed that he was involved in a motor vehicle accident during service in March 1975. It was argued that if this evidence had been acknowledged by the AOJ at the time of its November 1991 decision, the evidence was such that service connection for PTSD would have been awarded. A review of the claims file reflects that in October 1980, VA received a September 1980 statement from the Veteran (VA Form 21-4138) in which he indicated that he had attached a police accident report which confirmed the occurrence of his motor vehicle accident in service. Although the attached document is currently illegible, other evidence in the claims file, including the May 1982 Board decision, confirms that the document is a police accident report showing that the Veteran was involved in a motor vehicle accident during service in March 1975. Despite the fact that this evidence was in the claims file at the time of the November 1991 rating decision, the AOJ did not identify or otherwise acknowledge the police report in its decision. Rather, it found that there was no evidence of a motor vehicle accident in service on the basis that there was no such evidence in the Veteran’s service treatment records. Hence, the Board finds that the AOJ erred in its November 1991 decision because it did not consider the correct evidence as it then existed. In addition, the Board finds that in light of the law in existence at the time of the November 1991 rating decision, the outcome would have been manifestly different in that decision but for the AOJ’s error. In this regard, the Board points out that the current regulation pertaining to PTSD, 38 C.F.R. § 3.304 (f), did not exist at that time. Nonetheless, VA amended the Schedule for Rating Disabilities (38 C.F.R. Part 4) to accommodate the new diagnostic classification of PTSD, which had been incorporated in the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (3d ed. revised 1987) (DSM-III-R) when the third edition was published in 1980, at which time the agency indicated that “[t]he addition of this new diagnostic entity to the rating schedule will eliminate the necessity of rating by analogy to another listed diagnostic entity...” 45 Fed. Reg. 26326 (1980). Moreover, VA regulations in existence at the time of the November 1991 decision required a psychiatric diagnosis made in accordance with the Diagnostic and Statistical Manual for Mental Disorders, third edition (DSM-III). See 38 C.F.R. §§ 4.125, 4.126 (1991). Also, nonregulatory adjudication guidelines defining the criteria for granting service connection for PTSD had been added to the Department of Veterans Affairs Benefits Program Guide (Program Guide) before the November 1991 rating decision. The Program Guide was modified through Change 282 from March 17, 1980, to state the basis for the diagnosis of PTSD and a rationale for the granting of service connection, and specific adjudication criteria were later added to Chapter 50, § 50.45, of Manual M21-1. The applicable section of Department of Veterans Benefits Program Guide 21-1 § 0-12, Change 282 (March 17, 1980) reads as follows: When this disorder is initially manifested during service and records in service department clinical records, generally under such outdated terminology as “shell shock” or “combat fatigue” or words of similar import, there should be no hesitancy in granting service connection even though there may be a lapse of a considerable period of time between the psychic trauma and its chronic manifestations. When initial clinical manifestation occurs at a date remote from service termination, service connection should still be granted if the life threatening episode, described by the examiner, is consistent with the nature, character and circumstance of veteran’s service as evidenced by his or her military records. Program Guide, 21-1 § 0-12, Change 282 (March 17, 1980). A February 1981 change to the Program Guide, Section O-12, subsection 3, provided, in part, that PTSD did not have to have its onset during combat. It could be related to a similar life-threatening episode, such as having been a Prisoner of War (POW). The change noted that the use of life threatening episodes was used in a generic sense to describe those stressors set forth in section 309.81 of the Diagnostic and Statistical Manual of Mental Disorders (Third Edition) (DSM-III). The guidance went on to say that the existence of a recognizable stressor or accumulation of stressors that would evoke significant symptoms of distress in almost everyone must be identified. VA also issued DVB Circular 21-82-7 in May 1982 to clarify the requirements for the establishment of service connection for PTSD. The Circular noted that there had been a problem of claims with a lack of objective evidence of identifiable stressors. The claims contained only the veteran’s own statements, given many years after service, and without concrete evidence in the record to substantiate the statements. The Circular noted that objective evidence of a stressor included, but was not limited to, official service records that indicated medals or commendations awarded for combat; wounds suffered as a result of enemy action or for acts of valor; or experiences as a POW. The Circular summarized the three basic requirements for service connection for PTSD as: objective evidence of a life-threatening stressor in service; a diagnosis of PTSD acceptable for ratings purposes; and, adequate findings in the clinical examination describing stressor and symptoms or manifestations. Finally, the Circular said that a history of a stressor as related by the veteran was, in itself, insufficient. Service records must show that the veteran was wounded and/or was in combat against the enemy, was a POW, or must otherwise substantiate a stressor of sufficient gravity to evoke symptoms in almost everyone, as required by DSM-III. At the time of the AOJ’s November 1991 rating decision, the evidence in the claims file included a March 1991 VA psychiatric treatment record which documents the Veteran’s reports of a motor vehicle accident in service and subsequent psychiatric symptomatology, including poor concentration, anxiety, phobias, anger, irritability, depression, suicidal ideation/attempts, tangential and disorganized thinking, and flashbacks and nightmares associated with the in-service accident. The medical professional who conducted the March 1991 VA evaluation diagnosed the Veteran as having PTSD secondary to car crash. There was no other evidence contrary to a conclusion that the Veteran had PTSD which was related to his verified motor vehicle accident in service. In light of the March 1991 treatment record, the police report which confirmed the Veteran’s motor vehicle accident in service, and the law that was in existence at the time of the November 1991 rating decision, the Board finds that service connection for PTSD would have been awarded in that decision but for the AOJ’s failure to acknowledge the police report submitted to VA in October 1980. Since the AOJ failed to consider the correct evidence as it existed at the time of the November 1991 rating decision and the evidence reveals that but for this error the Veteran’s claim of service connection for PTSD would have been granted, the AOJ’s error was outcome determinative and there was CUE in its November 1991 decision. Hence, the November 1991 rating decision is reversed to reflect a grant of service connection for PTSD. As for the proper effective date to be assigned for the award of service connection for PTSD in the November 1991 rating decision, the March 1991 VA psychiatric treatment record, which includes a diagnosis of PTSD and a medical opinion that the Veteran’s PTSD was related to his verified motor vehicle accident in service, was obtained contemporaneous with his January 1985 claim of service connection for a psychiatric disability. Hence, the Veteran met the criteria for service connection for PTSD at the time of his January 1985 claim. There is no evidence of any unadjudicated formal or informal claim of service connection for a psychiatric disability subsequent to the May 1982 Board decision and prior to January 16, 1985. Moreover, although a medical diagnosis is required to establish entitlement to service connection for PTSD, see e.g. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014), the medical professional who conducted the March 1991 VA psychiatric evaluation noted the existence of the Veteran’s psychiatric symptomatology ever since his in-service accident, and the post-service lay and medical evidence in existence at the time of the November 1991 decision reflected that the Veteran experienced psychiatric symptomatology in the years since service. It thus cannot definitively be said that entitlement to service connection for PTSD arose after the January 1985 date of claim. For the foregoing reasons, there was CUE in the November 27, 1991 rating decision which denied service connection for PTSD. That decision is therefore reversed and amended to award service connection for PTSD, effective from January 16, 1985. REASONS FOR REMAND Entitlement to an effective date earlier than May 20, 2009 for the award of a TDIU due to service-connected disabilities is remanded. Evidence associated with the Veteran’s claims file, including the report of a January 2010 VA psychiatric examination, indicates that there are outstanding and relevant SSA disability records. A remand is required to allow VA to request these records. Finally, because the AOJ’s implementation of the Board’s award of an earlier effective date for the award of service connection for PTSD could significantly impact a decision on the issue of entitlement to an earlier effective date for the award of a TDIU, a remand of the TDIU issue is required to allow the AOJ to first implement the Board’s decision and to readjudicate the TDIU matter. The matter is REMANDED for the following action: 1. Implement the Board’s award of an effective date of January 16, 1985 for the award of service connection for PTSD and assign an initial disability rating. (Continued on the next page)   2. Obtain the Veteran’s federal disability and/or supplemental security income records from the SSA. Document all requests for information as well as all responses in the claims file. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel