Citation Nr: 20022471 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 18-20 848 DATE: April 1, 2020 ORDER Revision based on clear and unmistakable error (CUE) of the September 1981 rating decision, which denied service connection for post-traumatic stress disorder (PTSD) is granted and an effective date of March 3, 1981 is assigned. FINDING OF FACT Reasonable minds could not differ as to whether the Veteran clearly and unmistakably had PTSD at the time he filed his March 1981 claim os service connection for the mental disorder. CONCLUSION OF LAW The September 1981 rating decision, which denied service connection for PTSD contains CUE. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107, 5109A, 5110(g); 38 C.F.R. §§ 3.102, 3.105, 3.114(a); 3.159, 3.303, (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1967 to September 1968. He died in mid-2016, and the Appellant is his surviving spouse. She was properly substituted as the claimant in July 2016. CUE (38 C.F.R. § 3.105) 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). Here, a September 1981 rating decision granted service connection for PTSD. The Veteran did not file an NOD. Thus, the September 1981 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 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. 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. 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. As a threshold matter, the Board finds that the arguments advanced by the appellant 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. In November 2017, the RO found CUE in an August 2006 rating decision which granted service connection for PTSD with an effective date of March 30, 2006. The November 2017 rating decision found that an earlier effective date was warranted and assigned an effective date of March 9, 1984. The current application seeks revision of the denial of service connection for PTSD in the September 1981 rating decision. The application was denied by the RO in a September 2015 rating decision and the Board denied the application in June 2019. The Appellant appealed to the Court of Appeals for Veterans Claims (CAVC) and the parties agreed to a Joint Motion for Remand (JMR) in December 2019. As noted above, the review of a CUE petition is limited to the evidence available at the time the decision being collaterally attacked. The primary evidence available at the time of the September 1981 rating decision includes the Veteran’s service treatment records (STRs) and examinations conducted in February 1981, April 1981, and August 1981. In the Veteran’s December 1966 examination for service enlistment, he was noted to be fit for service and there was no report of frequent trouble sleeping, frequent or terrifying nightmares, or depression or excessive worry. In a February 1981, the Veteran underwent an examination by Dr. George W. Bischel, apparently generated during a criminal proceeding. In substance, Dr. Bischel found that the Veteran’s self-destructive behavior and substance abuse were the results of his experiences in Vietnam. Dr. Bischel noted the Veteran’s paranoia and nightmares and recommended hypno-psychotherapy to redirect the Veteran’s subconscious to accept that he is alive and safe. subconscious neurosis. An April 1981 examination by Dr. Robin Henderson diagnosed PTSD. The Veteran reported combat experiences that traumatized him. Dr. Henderson alluded to some lack of objective support for the Veteran’s information but opined that the Veteran presented a “typical constellation of factors” in PTSD In an August 1981 psychiatric examination, the Veteran was examined for “post-Vietnam stress syndrome.” The examiner reported symptoms including problems sleeping, difficulty relaxing, avoidance of crowds, and lack of employment. While the Veteran reported a belief that he was schizophrenic, the clinician opined that the Veteran had “post-Vietnam stress syndrome.” The Board finds that a finding of CUE is warranted because reasonable minds cannot differ given the evidence of record at the time of the September 1981 rating decision. The examinations summarized above represent the primary medical evidence available at the time of the September 1981 rating decision and this medical evidence clearly supports a finding that the Veteran did have a diagnosis of PTSD. In addition, both the February 1981 and April 1981 examinations concluded that the Veteran’s mental conditions were the result of his experiences in Vietnam. The Board notes that CUE is not warranted when there is a disagreement as to the weight assigned to evidence by the adjudicator. Fugo, 6 Vet. App. at 43-44. However, while the RO found in 1981 that the Veteran’s behavior were consistent with pre-service behaviors of petty juvenile misconduct, the pre-service record indicates no diagnoses. Therefore, the Board finds that if the Regional Office had thoroughly reviewed the available evidence there would have been a manifest change in the outcome of the September 1981 rating decision and the Veteran’s claim would have been granted. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The appellant’s claim for revision of the September 1981 rating decision on the basis of CUE is granted and PTSD is assigned an earlier effective date of March 3, 1981, for award of service connection. The Board makes no pronouncement of the rating to be assigned. On receipt of this decision, the RO may undertake a retrospective review of the evidence and assign an appropriate rating. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, 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.