Citation Nr: 20034585 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 15-36 330 DATE: May 18, 2020 ORDER Entitlement to an effective date prior to August 20, 2012 for the grant of service connection for posttraumatic stress disorder (PTSD) with alcohol use disorder is denied. The claim to revise a July 2011 rating decision on the basis of clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. A July 2011 rating decision that denied entitlement to service connection for PTSD is final. 2. The Veteran’s claim to reopen the previously denied claim of entitlement to service connection for PTSD was received on August 20, 2012. 3. The July 2011 rating decision that denied entitlement to service connection for PTSD was not clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to August 20, 2012 for the grant of service connection for PTSD with alcohol use disorder have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2019). 2. The criteria for revision based on CUE of the July 2011 rating decision that denied service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.105 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Army from March 1985 until February 1998. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In July 2018 the Veteran testified at a Board hearing before the undersigned Veteran’s Law Judge, and a transcript is of record. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2019); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The matter was remanded by the Board in April 2019 to allow the RO to adjudicate the claim of CUE in the July 2011 rating decision in the first instance. The rating decision denying CUE was issued in February 2020, and the issue was also addressed in the February 2020 supplemental statement of the case. The CUE claim is properly before the Board as part and parcel of the earlier effective date claim and is now ripe for appellate review. 1. Entitlement to an effective date prior to August 20, 2012 for the grant of service connection for PTSD with alcohol use disorder. The Veteran seeks entitlement to an effective date prior to August 20, 2012 for the grant of service connection for PTSD and alcohol use disorder (previously diagnosed as anxiety disorder not otherwise specified with depressive features and secondary alcohol abuse). Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2019). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Prior to March 24, 2015, a claim was “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). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. The Veteran’s initial claim for service connection for PTSD was received by VA on February 25, 2011. That claim was denied in a July 25, 2011 rating decision on the basis that there was no evidence that PTSD was diagnosed, and the Veteran did not provide any information with regard to the in-service incident(s) upon which his claim was based. The Veteran did not appeal that decision, nor did he directly submit any new or material evidence within one year. Under 38 C.F.R. § 3.156 (b), if new and material evidence is received prior to the expiration of an appeal period, that evidence may be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period” that prevents an initial determination from becoming final. 38 C.F.R. § 3.156 (b); see also 38 C.F.R. § 3.400 (q) (providing that, as to new and material evidence received within appeal period, the “effective date will be as though the former decision had not been rendered”). Under certain circumstances, VA adjudicators may be presumed to be in constructive receipt of records not actually in their possession sufficient to warrant consideration of a veteran’s claim under 38 C.F.R. § 3.156 (b), such as where VA adjudicators have sufficient knowledge of the existence of VA treatment records. See Turner v. Shulkin, 29 Vet. App. 207 (2018); cf. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that the Secretary of the VA had constructive knowledge of certain VA-generated documents sufficient to permit appellate consideration of such documents pursuant to 38 U.S.C. § 7252 (b)). “[C]onstructive receipt in the context of 38 C.F.R. § 3.156 (b), dealing exclusively with VA treatment records, requires knowledge by VA adjudicators of the existence of those VA treatment records within the one-year appeal period.” Turner, 29 Vet. App. at 218. In August 2013, additional and relevant VA treatment records were associated with the claims file. Those records include a July 2012 mental health consultation note in which it was documented the Veteran had residual mental health symptoms related to survivor guilt about an in-service helicopter crash. The July 2012 record related to an unestablished fact necessary to substantiate the claim, namely evidence of an in-service stressor and current mental health symptoms. VA was not in constructive receipt of the July 2012 record, however, because the Veteran did not notify the RO that he was receiving any treatment for a psychiatric condition within a year of his notification of the denial of that claim. Indeed, the evidence of record indicates that the earliest date that the RO had knowledge that the Veteran had received treatment for PTSD or that PTSD had been diagnosed was in December 2012 from correspondence submitted by the Veteran. Thus, VA did not have constructive receipt of the July 2012 VA treatment record and the July 2011 rating decision is final. See Turner, 29 Vet. App. at 218 (2018). The Veteran’s second claim of entitlement to service connection for PTSD was received on August 20, 2012; and service connection for PTSD has been in effect since that date. Even if entitlement to service connection for PTSD arose prior to August 20, 2012; the date of claim is the later in time and therefore the controlling effective date. Nothing was submitted between July 2011 and August 2012, so there was no informal claim for benefits received between July 2011 and August 20, 2012. Thus, the earliest effective date under the law is August 20, 2012 and the claim is denied. 2. Whether there was clear and unmistakable error (CUE) in a July 2011 rating decision. The Veteran also seeks revision of the July 2011 rating decision on the basis of CUE. A claim of CUE is a collateral attack on an otherwise final rating decision by an RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1997). Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). In order to find CUE in a prior adjudication, it must be determined (1) that either the correct facts known at the time or constructively known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the prior decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Bouton v. Peake, 23 Vet. App. 70, 71 (2008). 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. May v. Nicholson, 19 Vet. App. 310, 313 (2005). A breach of the duty to assist is not CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). An incomplete record, factually correct in all other respects, is not CUE because it is unknown what evidence would have been developed but for the breach, so the breach itself cannot be “outcome-determinative.” Id. On his September 2019 notice of disagreement, the Veteran indicated the RO may have failed to consider all relevant VA records when denying his original claim. The record at the time of the July 2011 included VA treatment records from 1999 through 2011, and a February 2011 report of general information noting the Veteran wished to file a claim for service connection for PTSD. The VA records document substance abuse treatment in 1999 and include a February 2005 negative PTSD screen. The Veteran did not submit any lay testimony of an in-service traumatic event or evidence of a diagnosis of PTSD, and he did not have any service medals indicating combat service. The July 2011 rating decision concluded there was no evidence of a diagnosis of PTSD, and that conclusion is not contradicted by the evidence available at the time of the prior decision. Review of the record available at the time of the prior decision failed to show a diagnosis of PTSD. Thus, the July 2011 rating decision was based on a correct report of the facts as known at the time. There is no evidence or argument that the RO committed an error of law. Alternatively, the Veteran and his representative assert CUE on the grounds that the Veteran may have had a psychiatric disorder when he first filed his claim, but VA failed to assist him to obtain a diagnosis. Essentially, they assert VA’s failure to obtain a VA examination and opinion in connection with the Veteran’s initial February 2011 claim constitutes CUE in the July 2011 rating decision that denied entitlement to service connection for PTSD. The Veteran and his representative assert CUE based on an alleged breach of the duty to assist, namely a failure by VA to obtain an examination. Even assuming VA breached its duty to assist the Veteran, a duty to assist error cannot be the basis of a CUE claim. Overall, there is no CUE in the July 2011 rating decision. The evidence preponderates the claim, therefore reasonable doubt cannot be resolved in the Veteran’s favor and the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.