Citation Nr: 20006014 Decision Date: 01/24/20 Archive Date: 01/23/20 DOCKET NO. 17-36 601 DATE: January 24, 2020 ORDER Entitlement to an earlier effective date of March 8, 2002 for the award of service connection for posttraumatic stress disorder (PTSD) is granted, on the basis of clear and unmistakable error (CUE). FINDINGS OF FACT 1. A reopened claim for service connection for PTSD was received on March 8, 2002. There were no prior unadjudicated claims. 2. The facts as they were known at the time of the February 2003 and January 2004 rating decisions were not properly before and considered by the RO, resulting in misapplication of the statutory or regulatory provisions governing new and material evidence then extant at the time. The error manifestly changed the outcome of that rating decision. CONCLUSIONS OF LAW 1. The February 2003 rating decision that denied reopening of the application for service connection for PTSD and the January 2004 rating decision that confirmed and continued the denial were CUE. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The criteria for an effective date of March 8, 2002 for the award of service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1975 to March 1978. The Veteran received a general discharge under honorable conditions. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at an October 2019 hearing held before the undersigned at the Central Office in Washington, District of Columbia. The Veteran’s wife was present at the hearing but did not testify. A transcript of the hearing is associated with the electronic claims file. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). This appeal arises from the Veteran’s disagreement with the initial effective date assigned following the grant of service connection for PTSD. Where an underlying claim for service connection has been granted and there is disagreement as to “downstream” questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). No additional discussion of the duty to notify is therefore required. The record also reflects that VA made reasonable efforts to obtain relevant records. In this regard, the record includes the Veteran’s private and VA outpatient treatment records and service treatment records. Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA’s duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Clear and Unmistakable Error The Veteran asserts CUE in the February 2003 rating decision that denied reopening of the application for service connection for PTSD and the January 2004 rating decision that confirmed and continued the denial. The Veteran stated that the basis for the denials in the aforementioned rating decisions – absence of a confirmed or verifiable in-service stressor – was in error. The Veteran asserts that the September 1997 Board decision conceded and established that his stressors occurred in service. He contends that the January 1998 letter from his treating psychologist submitted with his March 2002 claim discussed a nexus between his claimed in-service stressors and current diagnosis of PTSD. The Veteran contends that the letter was sufficient to reopen his claim. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The Veteran’s service connection claim of PTSD was initially denied by the Board in a September 1997 decision. The Veteran did not appeal the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The September 1997 Board decision is therefore final. In March 2002, the Veteran filed an informal application to reopen the claim of service connection for PTSD, which was denied by the RO in a February 2003 rating decision. The Veteran submitted evidence within a year of the decision, and a subsequent January 2004 rating decision confirmed and continued the prior denial. The Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new and material evidence within one year of its promulgation. Thus, the January 2004 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claims. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). At the time of the January 2004 rating decision, the claims file included the Veteran’s August 1994 Applications for Compensation or Pension (VA Form 21-526), service personnel and treatment records, a September 1994 VA examination report, March 1995 and February 2003 rating decisions, post-service treatment records, a September 1997 Board decision, a December 1997 Court decision, a March 2002 informal application to reopen the claim, a January 1998 psychologist’s letter, and a March 2002 counselor’s letter. The effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). If the claim is filed within one year of separation of service, the effective date may be the day following separation from service if entitlement arose. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.304(b)(2). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57660 (Sept. 25, 2014). As the claim in question was earlier than this, the amended provisions do not apply. Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). An informal claim was any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a) (2014). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The evidence of record reflects that the Veteran’s initial application for service connection for PTSD was received by the RO on August 10, 1994. The claim for service connection was denied by the RO in a March 1995 rating decision. The Veteran timely perfected his appeal, and the claim was denied by the Board in a September 1997 decision. The Board found that the Veteran did not present competent evidence of a nexus between his diagnosis of PTSD and his asserted in-service stressors, and hence no well-grounded claim existed. Importantly, the Board did not concede or find established the alleged stressors. Instead, their existence was presumed solely for purposes of the well-grounded analysis. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). A May 1998 order dismissed the appeal for lack of jurisdiction. Thereafter, the Veteran filed an informal application to reopen the claim of service connection for PTSD, received by the RO on March 8, 2002. In connection with his application, the Veteran submitted a letter from his treating psychologist, dated January 29, 1998. The psychologist provided a positive opinion that linked the Veteran’s current diagnosis of PTSD to his in-service stressors. The RO referenced the January 1998 letter in a February 2003 rating decision, but denied the claim of service connection for PTSD as the evidence submitted was not new and material. The RO determined that the letter did not “bear directly and substantially upon there being a confirmed or verifiable in-service stressor.” The Veteran submitted evidence within a year of its promulgation, and the RO confirmed and continued the prior denial in a subsequent January 2004 rating decision. The RO similarly stated that the Veteran did not provide evidence regarding the existence of his claimed in-service stressors. The Veteran did not appeal the January 2004 rating decision. On May 13, 2015, the Veteran submitted an intent to file a claim for compensation, which was followed by a May 27, 2015 Fully Developed Claim (VA Form 21-526EZ) for service connection for PTSD. The claim was denied by the RO in a September 2015 rating decision. The RO determined that the evidence did not show a current diagnosed disability of PTSD. The Veteran submitted a timely Notice of Disagreement in October 2015. In a subsequent April 2017 rating decision, the RO awarded service connection for PTSD with an evaluation of 70 percent disabling, effective May 27, 2015. In analyzing the record, the Board finds that the RO committed an error of fact in the February 2003 and January 2004 rating decisions, and this failure manifestly changed the outcome of those rating decisions. The Board further finds that the appropriate date for the grant of service connection for the Veteran’s PTSD is March 8, 2002, the receipt date of the Veteran’s informal application to reopen the claim of service connection for PTSD. The RO incorrectly stated the basis of the Board’s September 1997 denial of service connection for PTSD in its February 2003 and January 2004 rating decisions. As referenced above, the RO denied the Veteran’s claim to reopen his application as it indicated that the Veteran did not submit evidence regarding the existence of his claimed in-service stressors. The Board had presumed the Veteran’s in-service stressors as true for purposes of the adjudication of his claim on the basis of well-groudnedness, but found that the Veteran did not present competent evidence of a nexus to such. The Veteran’s submission of the January 1998 letter from his treating psychologist speaks directly to a positive nexus between his diagnosis of PTSD and in-service stressors. Thus, the subsequent association of the letter was material to his claim. Further, it was new, first having been considered in February 2003, The RO committed an error of fact, and the RO should have reopened the Veteran’s claim as he submitted new and material evidence that substantiated his claim. The Board considered whether the January 1998 treating psychologist letter was submitted prior to March 8, 2002. At the outset, the Board notes that the letter was addressed to the RO in Atlanta, Georgia. At the October 2019 Board hearing, the Veteran suggested that the letter was submitted in support of his initial August 10, 1994 claim. However, upon review of the record, the Board notes no earlier instances where the letter may have been associated with the Veteran’s claims file. There is no evidence it was actually mailed or submitted at the time it was authored. (Continued on the next page)   Therefore, the Board finds that the appropriate date for the Veteran’s claim of service connection for PTSD is March 8, 2002, the receipt date of the Veteran’s claim to reopen his application, to include submission of the nexus letter. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.