Citation Nr: 20067868 Decision Date: 10/20/20 Archive Date: 10/20/20 DOCKET NO. 15-23 094 DATE: October 20, 2020 ORDER The Veteran’s motion to revise the March 2007 rating decision that granted service connection for posttraumatic stress disorder (PTSD), effective October 7, 2005, on the grounds of clear and unmistakable error (CUE) is granted, and an effective date of April 9, 1985, but no earlier, for the award of service connection for PTSD, is assigned. FINDING OF FACT The March 2007 rating decision that assigned an effective date of October 7, 2005 for the award of service connection for PTSD contained clear and unmistakable error which compels the conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. CONCLUSION OF LAW The March 2007 rating decision contained clear and unmistakable error (CUE), and an effective date of April 9, 1985, for the grant of service connection for PTSD with major depressive disorder, is warranted. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.105(a), 3.156(c), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to July 1970. This appeal comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Procedural History In light of the relative complexity of this case, the Board will first provide a summary of the procedural history to date. The Veteran filed a claim for “delayed stress” that was received by the VA on April 9, 1985. The RO denied service connection for PTSD in a June 1985 rating decision, based on a finding that the Veteran’s service medical records were negative for a psychiatric disorder, and that no awards for combat or valor were awarded—in essence finding that the Veteran’s claimed stressor had not been corroborated. The rating decision acknowledged a January 1985 psychological report noted that the Veteran reported often being shelled with mortar and rockets in Vietnam and that he witnessed killings and lost close friends, but that there was no diagnosis of PTSD confirmed by a psychiatrist. The Veteran did not appeal that rating decision, and it became final. In February 1994, the Veteran filed an application seeking to reopen his claim for service connection for PTSD. In an August 1994 rating decision, the AOJ denied service connection based on the lack of a verified stressor. That rating decision became final. The Veteran filed an application to reopen his claim for service connection for PTSD in October 2005. Following the receipt of information verifying the Veteran’s reported stressors and a January 2007 VA examination, in a March 2007 rating decision, the AOJ granted service connection for PTSD and assigned a 30 percent rating, effective the date VA received his application to reopen his claim, October 7, 2005. A January 2015 Board decision granted an increased 70 percent rating effective as of October 7, 2005. In September 2014, the Veteran’s attorney contended that the March 2007 rating decision involved CUE in its assignment of an effective date of October 7, 2005, for the grant of service connection for PTSD. The March 2015 rating decision on appeal determined that no revision in the effective date of October 7, 2005 was warranted. The Veteran submitted a timely Notice of Disagreement, and this appeal followed. In a July 2018 decision, the Board denied the appeal to establish CUE in the March 2007 rating decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2019, the Court granted a Joint Motion for Remand (JMR) and vacated the Board’s July 2018 decision. The appeal returned to the Board and was again denied in a July 2019 decision. The Veteran again appealed to the Court, and in March 2020, the Court granted a JMR, vacating the Board’s July 2019 decision. The Court found that remand of the CUE claim was required because the Board erred by providing an inadequate statement of reasons or bases in support of its decision. Specifically, the Court found that the key question in this case was not whether the Veteran provided sufficient information in June 1985, at the time of the initial claim, for VA to have obtained missing service records to serve as a basis for granting his claim in 2007. Rather, the key question was whether the March 2007 rating decision erred by failing to apply the provisions of 38 C.F.R. § 3.156(c), and if application of that provision would have resulted in a manifestly different outcome. Entitlement to an effective date prior to October 7, 2005, for service connection for PTSD on the basis of CUE. The Veteran, through his attorney, contends that the appropriate effective date for the grant of service connection for PTSD should be the date VA received his claim in 1985. As noted above, the Veteran’s claim was received by VA on April 9, 1985. Under 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. Clear and unmistakable error (CUE) is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kid of error of fact or law that compels the conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). There is a three-pronged test for determining when there was CUE in a prior decision: (1) Either (a) 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 (b) the statutory or regulatory provisions existing at the time were incorrectly applied; and (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 Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). A claim that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Moreover, a failure on the part of VA to fulfill its statutory duty to assist a veteran with the development of facts pertinent to a claim does not constitute CUE. See Caffrey v. Brown 6 Vet. App. 377, 384 (1994). Nor can general allegations of “failure to follow the regulations,” “failure to give due process,” or any other general, non-specific claim of “error” meet the restrictive definition of CUE. See Fugo, 6 Vet. App. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. The rating decision that 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. See 38 C.F.R. §§ 3.104(a), 3.400(k). Here, the Board must consider whether the March 2007 RO rating decision committed CUE in failing to assign an earlier effective date for the award of service connection for PTSD under the provisions of 38 C.F.R. § 3.156(c). The Veteran’s specific contentions have been set forth in several letters, most recently in July 2020, and recounted in detail in the prior Board decisions. The crux of the Veteran’s argument is that the RO committed CUE when it failed to apply 38 C.F.R. § 3.156(c) to the facts of the Veteran’s case and instead, reopened the case and granted service connection for PTSD effective the date of receipt of the Veteran’s 2005 application to reopen. The Veteran’s attorney argues that 38 C.F.R. § 3.156(c) required the RO to assign the effective date of the award of service connection back to the date of the Veteran’s original service connection claim in 1985, because the 2007 award was based on newly-discovered service records that were available, but not obtained at the time of the initial claim. The Veteran’s attorney argues that the information used to verify the Veteran’s stressor was the same information provided to VA with his original 1985 claim. As noted, the Board has previously found in July 2018 and July 2019 decisions that the March 2007 rating decision did not contain CUE. The Court, in its most recent Order, directed the Board to consider the specific question of whether the March 2007 rating decision erred by failing to apply the provisions of 38 C.F.R. § 3.156(c), and if application of that regulatory provision would have resulted in a manifestly different outcome. See Fugo, 6 Vet. App. at 43. Pursuant to 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when it first decided the claim, VA is required to consider the claim de novo. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017); George v. Shulkin, 29 Vet. App. 199 (2017); 38 C.F.R. § 3.156(c). The purpose of this exception is to put the veteran in the same position he or she would have been in had VA considered the records in the first place. Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). This means that when relevant service records are newly associated with a claimant’s file, VA has a duty to reconsider the veteran’s previously denied claim on the merits. As part of the regulation, the Secretary has included a nonexhaustive list of records that could constitute official service department records. Id. As used in § 3.156(c)(1), “relevant” means noncumulative and pertinent to the matter at issue in the case. Kisor v. Shulkin, 969 F.3d 1333 (Fed. Cir. 2020). However, the applicability of this regulation is tempered by subsection (2), which provides that § 3.156(c) “does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim” or because the claimant did not “provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.” Once it is determined that reconsideration is warranted under subsection 3.156(c)(1), paragraph (c)(3) establishes the effective date for any benefits granted as a result of reconsideration. Kisor, 869 F.3d at 1363. That section provides that an award made based at least in part on the newly received service records “is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later….” 38 C.F.R. § 3.156(c)(3). “Section 3.156(c) thus provides for an effective date claims that are reconsidered that is different from the effective date for claims that are reopened.” Kisor, 869 F.3d at 1363. As summarized above, in his April 1985 claim, the Veteran requested service connection for “delayed stress.” The Veteran’s service treatment records were requested and received in May 1985. The June 1985 rating decision indicated that service medical records were negative for a psychiatric disorder. The rating decision noted a review of a January 1985 psychiatric report wherein the Veteran reported often being shelled with mortar and rockets in Vietnam and witnessing the killings and loss of close friends and wherein the treating clinician noted that the Veteran had PTSD and dysthymic disorder. Service connection for PTSD was denied in the June 1985 rating decision. The Veteran filed a claim to reopen in February 1994. The claim was denied in August 1994 because the medical evidence did not show a history of experiencing a stressful event. He submitted another claim to reopen in October 2005 as well as a statement in December 2005 detailing his stressor events. Thereafter, the RO sent a request to the Center for Unit Records and Research (CURR) for information relating to the Veteran’s claimed stressors. In November 2006, the resulting research from the CURR request revealed documentation of events that the RO found sufficiently consistent with the Veteran’s claimed stressors to grant service connection for PTSD in the March 2007 rating decision. Specifically, the November 2006 CURR response stated, in pertinent part, that “a friendly mortar fire round landed near the 156th heavy Equipment Maintenance Companies mess hall resulting in no casualties but damage to a two and a half ton truck parked by the mess hall which suffered four flat tires,” and, “on May 5, 1968, the Da Nang bridge cargo facility was the target of an enemy rocket attack, resulting in three US [Navy] killed and others wounded.” The Veteran was subsequently given a VA evaluation for PTSD in January 2007. He was diagnosed as having PTSD, which the examiner attributed to his in-service stressors. The March 2007 rating decision granting service connection did so on the basis of verification of the Veteran’s claimed stressors taken together with the opinion of the January 2007 VA examiner. As noted above, the specific question to be addressed by the Board is whether the March 2007 rating decision erred by failing to apply the provisions of 38 C.F.R. § 3.156(c), and if application of that regulatory provision would have resulted in a manifestly different outcome. In the two prior Board decisions (which are now vacated), the Board attempted to distinguish the Veteran’s stressor descriptions in 1985 from those made in 2005, finding that the 2005 descriptions were sufficient for VA to identify and obtain service records that would potentially corroborate the claimed stressor, while the 1985 descriptions were not. In so finding, the Board was essentially indicating that the favorable effective date provisions of 38 C.F.R. § 3.156(c) were not for application. Crucially however, the parties to the most recent JMR noted that the Board already conceded in its prior decision that the additional service records were produced in 1968 and were available to VA at the time of the 1985 rating decision, and that the Veteran had informed VA of his unit, his military occupational specialty, his service dates in Vietnam, and the stressor assertion that his unit underwent mortar attacks prior to the 1985 rating decision. The parties to the JMR appeared to stipulate that the provisions of 38 C.F.R. § 3.156(c)(2) are not applicable to the facts of this case, and that both parties have agreed that there was in fact sufficient information for VA to identify and obtain corroborating records in 1985. Indeed, the JMR specifically notes that the key question at issue in this case was not whether the Veteran provided sufficient information in June 1985 for VA to have obtained the missing service records. With this stipulation in mind, the key question turns to whether CUE existed in failing to apply the other provisions of 38 C.F.R. § 3.156(c) when awarding an effective date for service connection in the 2007 rating decision. The Board finds that the CURR records were “relevant” as it is defined in the context of 38 C.F.R. § 3.156(c)(1). The records validated the Veteran’s reported stressor event. Given that the CURR records were “relevant” pursuant to 38 C.F.R. § 3.156(c), readjudication of the Veteran’s claim based on that section was warranted. As the March 2007 rating decision did not apply 38 C.F.R. § 3.156(c), the Board finds that the RO committed legal error. The Board also finds that the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. As noted above, under 38 C.F.R. § 3.156(c)(3), an award made based at least in part on the newly received service records “is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later….” 38 C.F.R. § 3.156(c)(3). “Section 3.156(c) thus provides for an effective date claims that are reconsidered that is different from the effective date for claims that are reopened.” Kisor, 869 F.3d at 1363. Here, there is no question that the award of service connection in 2007 was based, at least in part, on the confirmation of the Veteran’s stressors completed through CURR research. So, it is clear in this case that the effective date provisions of 3.156(c)(3) were applicable. The evidence of record at the time of the March 2007 rating decision contained medical evidence clearly establishing that the Veteran had PTSD, that such was due to service, and that such has been present since his discharge from service. Indeed, a January 9, 1985 Consult Sheet indicated that psychiatric testing was completed, revealing the presence of an anxiety disorder, with severe depression. It was noted that the Veteran had suggested symptoms of PTSD at the time, and that an interview was needed to make that determination. Before the end of the month, this interview took place, and it was the opinion of the social worker conducting the interview that the Veteran had posttraumatic stress disorder. See a January 21, 1985 Psychosocial History. The Veteran received PTSD treatment from VA for many years thereafter, and after interview and examination of the Veteran in 2007, it was the opinion of the January 2007 VA examiner not only that the Veteran had PTSD as defined under the DSM, but also that such was related to his in-service stressors, and that the Veteran had been consistently diagnosed with PTSD by VA and private practitioners. Crucially, the January 2007 VA examiner determined that the onset of the Veteran’s symptoms was while the Veteran was in Vietnam, and that his PTSD “has been going on since 1968 or 1969 every day.” Based on this evidence—all of which of record at the time of the March 2007 rating decision—the Board finds that had the RO applied the provisions of 38 C.F.R. § 3.156(c) to the Veteran’s case in assigning an effective date for the award of service connection (that is, had the RO not made a legal error), reasonable minds would not disagree that, application of 38 C.F.R. § 3.156(c) would require the assignment of an effective date coinciding with the date VA received the Veteran’s April 1985 service-connection claim, as that is the latter date when comparing the date of claim and the date entitlement arose. The Veteran’s motion to revise the March 2007 rating decision that granted service connection for posttraumatic stress disorder (PTSD), effective October 7, 2005, on the grounds of clear and unmistakable error (CUE) is granted, and an effective date of April 9, 1985, for the award of service connection for PTSD, is assigned. Insofar as the Veteran’s attorney has argued in prior briefs that the effective date for the award of service connection for PTSD should be March 29, 1985 (the date the Veteran signed his application for compensation), effective dates are based on date of receipt by VA, and not by date of signature or mailing. See 38 C.F.R. §§ 3.156(c)(3), 3.400. The Veteran’s attorney has also suggested in a July 2020 brief, that the effective date should be February 13, 1985, as that is the date the Veteran’s “informal claim” was received. The Board notes that it observed no correspondence in the Veteran’s file date-stamped as received by VA on February 13, 1985. To the extent the Veteran’s attorney is suggesting that psychiatric evaluations received by VA earlier in February 1985 should be construed as an informal claim for service connection, the Board finds that under the regulations applicable at the time (former 38 C.F.R. §§ 3.155 and 3.157 (prior to March 24, 2015)), the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). At the time of receipt of medical records in February 1985, there was no prior adjudication awarding service connection for a psychiatric condition, or denying it based on the condition being noncompensable. Moreover, the records were not accompanied by any statement identifying the sickness, disease, or injury for which compensation was sought, with at least at a high level of generality, as is required to be construed as a formal or informal claim. See Sellers v. Wilkie, 965 F.3d 1328 (2020). Indeed, the submitted treatment records consisted not only of psychiatric evaluations, but also documentation of in-service removal of sutures and treatment for a sebaceous cyst of the left temporal area. There is no indication at the time of submission that the records received in early February 1985 were submitted for the purposes of initiating a service-connection claim for a psychiatric condition. Thus, the Board finds that the effective date for the award of service connection for PTSD is appropriately the date VA received his formal application for the same, April 9, 1985. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.