Citation Nr: 18125602 Decision Date: 08/10/18 Archive Date: 08/10/18 DOCKET NO. 15-30 566 DATE: August 10, 2018 ORDER The motion to revise the September 2002 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 January 26, 1995 for a grant of service connection for PTSD, the September 2002 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 September 2002 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 served on active duty from September 1966 to September 1968. By way of background, the Veteran was denied entitlement to service connection in an April 1972 rating decision for a nervous disorder. The Veteran did not appeal that decision within one year, and as a result, it became final. In September 1999, the VA Regional Office (RO) granted service connection for a new claim for PTSD, effective from September 17, 1998. The following month, in October 1999, the RO granted an earlier effective date for the PTSD, now effective from January 26, 1995. The Veteran appealed that decision, asserting he was entitled to an earlier effective date for his PTSD, and on September 4, 2002, the Board denied an appeal for an effective date earlier than January 26, 1995 for the Veteran’s service-connected PTSD. In March 2009, the Veteran made a claim that the assigned date for his service-connected PTSD, established in the October 1999 rating decision and confirmed in the September 2002 Board decision, was clearly and unmistakably erroneous. The RO denied that CUE claim involving the October 1999 rating decision in June 2009. In July 2001, the Veteran testified before a Veterans Law Judge (VLJ) during a travel board hearing at the RO. A transcript of the hearing has been associated with the claims file. The Board notes that the Veteran’s representative submitted an appellate brief in May 2017 and indicated that the Veteran desired an additional hearing for the same issue for which a hearing had already been provided in July 2001. A moving party is not entitled to a Board hearing on a CUE motion, but the Board may choose to grant a request for a hearing for good cause for the sole purpose of receiving argument—not providing evidence or testimony. 38 C.F.R. § 20.1405(c). Here, the Veteran’s attorney has already submitted a recent written brief with argument for the Veteran’s motion for CUE, which is now part of the claims file. There was no indication of any change in circumstances or other pressing reason to provide an additional hearing. The Veteran has had ample opportunity afforded him to submit additional evidence after the last Board hearing and has done so on several occasions since. There is no indication that the decision to not provide an additional Board hearing would prejudice the Veteran in any way. Absent a showing of a substantial need or change in circumstances, the Board shall proceed in its adjudication without an additional hearing. See Cook v. Snyder, 28 Vet. App. 330 (2017). 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). 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). Adjudication of CUE in Board decisions is governed by 38 U.S.C. § 7111 and by 38 C.F.R. § 20.1400 through 20.1411. The Board has original jurisdiction over motions to revise prior Board decisions. In addition, because the Veteran’s assertion of CUE is against a Board decision of September 2002, 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 September 2002 Board decision that denied an earlier effective date for service-connected posttraumatic stress disorder (PTSD) The argument of the Veteran’s attorney, dated May 24, 2017, makes a motion to revise the April 27, 1972 rating decision, the October 28, 1999 rating decision, and the September 4, 2002 Board decision on the basis of clear and unmistakable error. Because the 2002 Board decision arose directly from the appeal of the October 1999 rating decision, which also involved the April 1972 rating decision, the Board considers those RO decisions to be subsumed by the September 2002 Board decision, and the procedural posture has been adjusted accordingly. 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). The rationale for subsumation is that allowing the AOJ to review a prior RO decision on a claim that the Board has already disallowed would be allowing the AOJ to consider and revise the Board’s decision, which is prohibited by 38 U.S.C. § 7104(b). See Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994). Consequently, once the Board has denied a claim, the AOJ cannot consider that claim again unless new and material evidence is presented to reopen it, a fact the RO noted in the July 2015 Statement of the Case. Dittrich v. West, 163 F.3d 1349, 1351-52 (Fed. Cir. 1998). The Board decision of September 4, 2002 denied the Veteran’s claim, appealed from an October 1999 rating decision, that he was entitled to an effective date earlier than January 26, 1995 for service connection of his PTSD. In its findings and conclusions, that Board 2002 decision determined that the RO had issued a rating decision in October 1999 that shifted a previously established effective date of service connection to January 26, 1995, and that neither a formal or informal claim of entitlement to service connection for PTSD was submitted prior to January 26, 1995. The Veteran’s assertions of CUE in the September 2002 Board decision and the subsumed April 1972 and October 1999 rating decisions are several. First, the Veteran asserts that due to a mix-up with a Veteran of a similar name, that the proper service medical records were not before the RO in its initial April 1972 rating decision, and were not part of the record until the two 1999 rating decisions. Ancillary to this argument, the Veteran argues that the RO in 1999 should have reconsidered the 1972 rating decision because it now had the service medical records, citing 38 C.F.R. § 3.156(c) as the authority. Also regarding the 1972 rating, the Veteran asserts his claim was denied because he did not report for a scheduled examination. Second, the Veteran alleges that his nervous condition claimed in 1972 is PTSD essentially by another name, prior to the current definition used in VA regulations, and that the granting of service connection for PTSD in 1999 should have been effective back to 1972 because it is the same psychiatric condition he complained of in his 1972 claim. Third, the Veteran argues through his attorney that 1974 VA medical records suggesting the Veteran had a “depressive neurosis” should be accepted as an informal claim, which would have resulted in an earlier effective date for the service-connected PTSD. The Board will consider the arguments in turn. First Assertion First, the April 1972 rating decision denied service connection for a claimed “nervous condition” because there was no evidence of the condition in the Veteran’s military medical records and also no evidence of a current disability. The Veteran was notified in a letter dated May 5, 1972 and did not submit a notice of disagreement within one year, and that decision thus became final. With regard to any claims activity, the Veteran’s next communication with VA is in 1976 when he submitted information regarding his dependents. In 1982 and again in 1989, the Veteran submitted a claim for a non-service-connected pension. Not until January 1995 does the Veteran file a claim to reopen for his “nervous disorder,” the disability so claimed in 1972. That claim was denied because there was no in-service occurrence of any nervous condition per his service treatment records, but VA examiners, noting the presence of a documented stressor, diagnosed the Veteran with PTSD, for which he was service connected effective from the January 26, 1995 date of claim. RO decisions issued prior to February 1, 1990, were not required to identify the evidence considered or the reasons for RO decisions because 38 U.S.C. § 5104(b) had not been promulgated in its current form. For CUE claims challenging RO decisions from prior to February 1, 1990, the Board must analyze the evidence that was before the RO at the time of the decision and determine whether the RO’s decision was supported by the evidence. Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005). The Federal Circuit has held that RO decisions from prior to February 1990 are presumptively valid. Natali v. Principi, 375 F.3d 1375, 1380-81 (Fed. Cir. 2004) (holding that statements of reasons and bases were not required in RO decisions prior to Pub. L. No. 101-237, 103 Stat. 2062 (1988)). The Board notes the presence of VA medical records from the VA Medical Center in East Orange, New Jersey from May 19, 1974 to September 5, 1982. These records note that the Veteran had been admitted for “anxious depression;” the initial formal diagnosis made was a “depressive neurosis.” During this period, the VA records also note two diagnoses of schizophrenia. These are the earliest records in the Veteran’s claims file that he has a current disability of a psychiatric condition of some sort. Thus, the Board notes, there are substantial references to various psychiatric conditions in the Veteran’s VA medical files. But there are no references to any psychiatric condition in the Veteran’s service records, during his period of active duty from September 1966 to September 1968, and that, per all applicable denials for service connection in the Veteran’s claims file, is the reason for the denial of the claim for a “nervous disorder” in 1972. The Board notes that the Veteran’s service medical treatment records were present for the April 1972 rating decision, because there are references to both the 1966 induction and the 1968 separation examinations, which have no notation of any “nervous disorder.” The Board notes the term on the rating decision “not shown by the evidence of record,” which the Veteran incorrectly suggests meant that his service records were not considered in the decision. That term as stated means the record did not show the presence of evidence necessary to successfully grant the Veteran’s service connection claim; it is not a statement of missing records. The Board notes and acknowledges that a veteran with a similar name may have had his records confused with the Veteran in this CUE claim, but also notes that the presence of additional records from another person in this Veteran’s file did not prevent VA from adjudicating with the necessary evidence. Even if, arguendo, that there were service medical records that were not considered, such a defect would not reach the standard of a clear and unmistakable error. For the April 1972 rating decision, the doctrine of constructive possession does not apply (that VA must consider evidence that was not actually in the claims file at the time of the challenged decision, if the documents could reasonably be expected to be part of the record), because that legal principle took effect on July 21, 1992 and was not in effect at the time of the April 1972 rating decision. Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95. CUE should be evaluated using the law as it existed at the time of the challenged decision. See, e.g., Fournier v. Shinseki, 23 Vet. App. 480 (2010) (finding that it was not CUE to determine that a claim was not pending when the regulations pertaining to notice and denial at the time of such notice were followed). 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). Further, the presumption of administrative regularity attaches—meaning that, in the absence of contrary evidence, there is a presumption that the RO made the requisite factual and legal findings needed to adjudicate the claims. Pierce v. Principi, 240 F.3d 1348, 1355-56 (Fed. Cir. 2001) (holding that the presumption of administrative regularity does not conflict with the requirements of 38 U.S.C. § 5107(b)). Consequently, the CUE context, “failure to mention evidence in a decision prior to February 1990 does not mean that the evidence was not considered.” King v. Shinseki, 26 Vet. App. 433, 438 (2014). To qualify as CUE, there must be some indication in the decision that a specific fact was not considered, such as an explicit denial that a piece of relevant evidence existed. Id. at 438-39; (emphasis added). “To establish CUE based on the failure to consider a particular fact or law, ‘in a pre-February-1990 RO decision, it must be clear from the face of that decision that a particular fact or law had not been considered in the RO’s adjudication of the case.’” Evans v. McDonald, 27 Vet. App. 180, 188-89 (2014) (en banc) (citing Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005) (emphasis in the original). Thus, in regard to the Veteran and his attorney’s first assertion, the Board finds that the Veteran’s service medical records were considered in that April 1972 rating decision. The fact that he did not report for a medical examination was not necessary to the denial of the claim because the rating decision determined there was no mention of a nervous disorder in the service medical records, preventing satisfaction of a requirement for service connection that the disability claimed result from an in-service injury or occurrence, obviating the need for a medical examination. 38 C.F.R. § 3.303. Thus, the failure to report for a medical examination does not constitute a clear and unmistakable error. The Veteran also asserted that 38 C.F.R. § 3.156(c) somehow means that his 1995 claim to reopen the original 1972 denial of service connection constitutes a clear and unmistakable error. However, the Board considers the Veteran to have misread the purpose and intent of that regulation. Under 38 C.F.R. § 3.156(c), 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, then VA will address the claim on a de novo basis on the merits and will not treat the claim as a new and material evidence claim. Because the service medical records were present for the 1972 adjudication, there was no basis for the Veteran to later claim a service records exception in 1995 to reopen for a nervous condition. Per the 1999 rating decisions, VA reopened the original claim because it had new and material evidence: the VA medical records from 1974 to 1982 cited above. Thus, an assertion that 38 C.F.R. § 3.156(c) is pertinent to an analysis of clear and unmistakable error in the 1972 decision is not a valid argument. Second Assertion The Veteran’s second major assertion of CUE is that the PTSD diagnosed after his 1995 claim is essentially the same psychiatric disorder as the “nervous disorder” he claimed in 1972, and therefore his effective date of service connection for the PTSD should relate back to the 1972 claim, rather than January 26, 1995, the date the Veteran filed to reopen his claim. The Veteran’s attorney, without any citation to medical literature or other substantiation, asserts that the Veteran’s diagnosis of May 19, 1974 of a “depressive neurosis” in VA medical records constitutes an equivalent diagnosis of PTSD in 1980. Simply put, PTSD and a nervous disorder of any kind are two distinctly different psychiatric disorders. See 38 C.F.R. § 4.130. Service connection for PTSD, with its effective date of January 26, 1995, cannot be related to a claim for a different disability, even if the 1995 claim to reopen included the original term from the 1972 rating decision. It is a fundamental principle of VA claims for service connection that it may be granted for a disease which began during active military service—the emphasis for this point being the specificity of the term “disease.” While VA regulations provide for the evaluation and rating of numerous physical and mental disabilities, a diagnosis of a specific disease or disability is a prerequisite to identify the claim being made. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board acknowledges 38 C.F.R. § 4.2, in that “different examiners, at different times, will not describe the same disability in the same language.” Here, however, are two different disabilities. PTSD first appeared in the DSM-III when published in 1987, and was used until November 1996; the subsequent DSM-IV was used at the time of the 1999 rating decisions that granted the Veteran’s service connection for PTSD. The Veteran had never been diagnosed with the claimed “nervous condition” while during active service; his service medical records are wholly and completely negative for symptoms, complaints, treatment, or diagnosis of any “nervous condition.” Those service medical records also show no prescription of a psychiatric-related medication during active service. After the Veteran reopened his claim for service connection for a nervous disorder in January 1995, he received VA medical examinations in March 1995, which diagnosed schizophrenia, and October 1998, which diagnosed schizophrenia as well and noted a history of anxiety, but did not diagnose PTSD. The Veteran received another VA examination for his mental disorders in August 1999 that diagnosed PTSD with a secondary diagnosis of depression, which led to the grant of service connection in September and October 1999 rating decisions, effective from the date of the claim of January 26, 1995. At no time did the Veteran receive a diagnosis of a “nervous disorder” that could relate back to the Veteran’s active service from 1966 to 1968. While the Board notes a diagnosis of “depressive neurosis” from May 1974 VA medical records, and other psychiatric diagnoses in the years to follow, because none of them were diagnosed in service, there was no possibility of award of service connection. Only the special service connection requirements for PTSD involving an in-service stressor, outlined in 38 C.F.R. § 3.304(f), enabled VA to grant service connection for PTSD, and no other psychiatric disorder, in the 1999 rating decisions. See 38 C.F.R. § 4.125. The evidence of record shows that the Veteran did not have a diagnosis of PTSD at the time of his 1972 claim. The current claim for service connection was received on January 26, 1995. This service connection claim was granted on the basis of the new VA diagnosis of PTSD. Using the case law in existence in 2002 when the Board made its adjudication, that decision noted when the claim or application is based on a diagnosis not considered in a previous adjudication, it is a new and separate claim. Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996); see also Ashford v. Brown, 10 Vet. App. 120, 123 (1997). As such, the Board considers the second assertion of the Veteran, that his diagnosed and service-connected PTSD is essentially the same psychiatric disorder for service connection purposes and that his PTSD effective date should relate back to his original 1972 claim, to not be a clear and unmistakable error. The Veteran received VA psychiatric care from 1974 forward, and his diagnosis of PTSD in 1999 ties back to the claim he made to reopen for service connection of a nervous disorder in 1995. Because the diagnosis of PTSD was not made in 1972 (or at any time prior to 1999), and the fact that the service medical records are silent for any mention of a nervous condition, the Board considers the diagnosis of PTSD in 1999 to be a separate claim based on a new diagnosis, and not a continuation of earlier diagnoses. Third Assertion The Veteran, through his attorney, argues that his VA medical records going back to May 19, 1974 that diagnosed a “depressive neurosis,” should be accepted as an informal claim, which would result in an earlier effective date for his now-service-connected PTSD. The Veteran cites 38 C.F.R. § 3.157 as the source for this claim, a regulation that is no longer part of the current Code of Federal Regulations, Title 38, but did exist at the time in 1974. Since adjudication of a CUE claim requires the use of the law and regulation that existed at the time, the Board will consider the language of this section, then entitled “Report of Examination Or Hospitalization As Claim for Increase Or To Reopen.” 38 C.F.R. § 3.157 (1974). The Board notes this particular section of the C.F.R. was enacted December 1, 1962, and the wording of the applicable paragraphs remained the same until revision in 1987. 38 C.F.R. § 3.157 (1974); see FR Doc. 87-16450, July 20, 1987. In pertinent part, 38 C.F.R. § 3.157(A) (1974) says: “[a] report of examination or hospitalization which meets the requirements of this paragraph will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue....” Paragraph (B) of the same section of the regulation continues: “Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reasons that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen.” Id. The Board notes the presence of VA medical records for the dates indicated by the Veteran’s attorney, and notes also diagnoses of depressive neurosis among other treatment notes regarding the Veteran’s psychiatric condition at the time. However, at that time in 1974, the Veteran was not service-connected for any psychiatric disorder; his claim for service connection for a nervous disorder had been denied in April 1972 for lack of an in-service occurrence, as previously discussed. The regulation states particularly that “once a formal claim... has been allowed or a formal claim... disallowed for the reasons that service-connected disability is not compensable in degree, receipt of [a VA examination or hospitalization] will be accepted as an informal claim for increased benefits or an informal claim to reopen.” Id. (emphasis added). In other words, 38 C.F.R. § 3.157 (1974) applies to claims for an increased rating, to include a claim for a compensable evaluation for an already-service-connected disability. At this time in 1974, and not until January 26, 1995, the Veteran is not service-connected for any psychiatric disorder, and thus this paragraph does not apply. As such, then, the September 2002 Board decision which denied that assertion in the Veteran’s appeal for earlier effective date for service-connected PTSD cannot constitute clear and unmistakable error. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006) (finding that the language of § 3.157 clearly states that “a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability”). At the time of the September 2002 Board decision denying an earlier effective date for service connected PTSD, the pertinent regulatory authority remained the same in meaning and effect, with only minor formatting changes that did not alter the meaning of the earlier version of the regulation then in effect in 1974. Furthermore, this general issue, that of a VA medical record possibly constituting an informal claim, has been reviewed by higher judicial authority since and has reached the same conclusion. The United States Court of Appeals for Veterans Claims (Court) has held that a report of examination or hospitalization may be accepted as an informal claim for benefits, but only after there has been a prior allowance or disallowance of a formal claim for compensation. Crawford v. Brown, 5 Vet. App. 33, 35-6 (1993); see 38 C.F.R. § 3.157(b) (2001). Medical records cannot constitute a claim for service connection. Brannon v. West, 12 Vet. App. 32 (1998); see also Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The Board notes that changes to regulatory language in 38 C.F.R. § 3.155 regarding formal and informal claims have since occurred, but those changes, which took effect on and after March 24, 2015, do not have bearing on the Veteran’s CUE claims in this adjudication. Conclusion The Board finds the September 2002 Board adjudicators that made the decision denying an effective date earlier than January 26, 1995 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 and his attorney, who bore the burden of proof in this claim 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 September 2002 Board decision weighed the evidence against existing and appropriate law and regulation to make its determination that denied an effective date earlier than January 26, 1995 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 September 2002 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 decisions of April 1972 and October 1999. As such, the Board finds that the Veteran fails to establish factual or legal error rising to the level of CUE in the September 2002 Board decision that denied the claim of an effective date earlier than January 26, 1995 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