Citation Nr: 20068374 Decision Date: 10/22/20 Archive Date: 10/22/20 DOCKET NO. 18-49 743 DATE: October 22, 2020 ORDER An effective date of March 3, 1994, but no earlier, for the grant of entitlement to service connection for posttraumatic stress disorder (PTSD) based on a finding of clear and unmistakable error (CUE) in a March 2005 rating decision is granted. FINDING OF FACT The March 2005 rating decision that assigned an effective date of July 31, 2002, 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 criteria for an effective date of March 3, 1994, but no earlier, for the grant of entitlement to service connection for PTSD based on a finding of CUE in a March 2005 rating decision have been met. 38 U.S.C. §§ 1110, 5110; 38 C.F.R. §§ 3.105(a), 3.156(c), 3.303, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to June 1968. This matter comes before the Board on appeal from a March 2016 Regional Office (RO) rating decision. The issue on appeal was previously denied in an August 2019 Board decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court granted the parties’ May 2020 Joint Motion for Partial Remand (Joint Motion), which vacated the issue on appeal and remanded it to the Board for additional development and readjudication. The Joint Motion notes that the Veteran had raised four separate theories of entitlement to the benefit sought. Three of these theories were based on an allegation of CUE in a December 1994 rating decision, and one of these theories was based on an allegation of CUE in the March 2005 rating decision. The Joint Motion notes that the Veteran had abandoned pursuit of the CUE theories based on the December 1994 rating decision. However, he still wished to pursue the CUE claim based on the March 2005 rating decision, and the Joint Motion has determined that the Board has jurisdiction over this claim. In its May 2020 Order, the Court granted the parties’ motion “to vacate the Board’s decision denying Appellant’s May 2015 CUE motion seeking to reverse the March 10, 2005, rating decision, and to remand that matter for readjudication consistent with this motion.” The Joint Motion further stated that “The Board must also determine whether the Court’s decision in Mayhue v. Shinseki, 24 Vet. App. 273 (2011) warrants reversal of the March 10, 2005, rating decision on grounds of CUE.” The case has thus been returned to the Board for readjudication. An effective date of March 3, 1994, but no earlier, for the grant of entitlement to service connection for PTSD based on a finding of CUE in a March 2005 rating decision is granted. The Veteran claims entitlement to an effective date of March 3, 1994, for the grant of service connection for PTSD on the basis of CUE in a March 2005 rating decision. The Veteran’s original claim of entitlement to service connection for PTSD was received by the RO on March 3, 1994. Generally, to establish service connection a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315 16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). Generally, the evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether a veteran engaged in combat with the enemy. See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). Service department evidence that the veteran engaged in combat or that a veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f). In the case at hand, the Veteran’s service personnel records do not contain evidence, including awards or decorations, sufficient to establish that he engaged in combat with the enemy as defined by the relevant regulations. Therefore, the Veteran is not entitled to the presumption that attaches for veterans who have “engaged in combat with the enemy.” For a veteran who is not determined to have “engaged in combat with the enemy,” a veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In the case at hand, in April 1994, the Veteran was sent a letter noting that “[W]e also need information from you.” It requested that the Veteran “Please give us the dates and places of your military assignments and your specific duties at each location. Please identify for us the events or experiences you found most upsetting. Describe them in detail, to include the date and place where they occurred and names of persons involved.” It notes that “We must have specific answers to the above questions in order to take further action on your claim for compensation.” The claims file contains two VA medical records reflecting that the Veteran underwent psychiatric hospitalization twice in 1994. The first of these is a Discharge Summary that reflects that the Veteran was hospitalized for approximately four weeks in February and March of 1994 “because of symptoms of PTSD.” It notes that, “Upon admission, the patient reported a history of PTSD symptoms including flashbacks, nightmares, intrusive thoughts, isolative behavior and hypervigilance since Vietnam.” He was diagnosed with PTSD. Another VA medical record reflects that the Veteran again underwent psychiatric hospitalization for PTSD evaluation for a three-week period from late March 1994 to April 1994. At that time, he discussed his service in Vietnam, noting that he “became scared and overwhelmed in his eleventh month [in Vietnam] and was discharged one month early. It was in Vietnam that [the Veteran] began to use cocaine, alcohol, and heroin.” It notes the following: [The Veteran’s] traumatic experiences included: 1. Chest injury sustained when hi[t] by shrapnel from a mine set off by a truck behind him in his convoy. 2. Witnessing sniper attacks. 3. Witnessing ambush on Ho Chi Min trail. 4. Returning to tent after R&R after discovering “a mortar exploded in my bed.” 5. Learning that three infantry men in his proximity were shot in the head during ambush. 6. Burying bodies. He was given a diagnosis of “PTSD delayed; substance abuse cocaine.” The Veteran underwent a VA examination in July 1994. The resulting examination report notes that the Veteran “was in Vietnam for one year, at age 18.” The Veteran reported that, “During that time, he was an engineer and travelled widely across Vietnam. He was frequently fired upon and in heavy fire zones. He also describes many occasions of retrieving bodies of his buddies or bodies of friends.” It describes no non-service-related stressor events. Following interview of the Veteran and review of the reports of recent psychiatric hospitalizations, the VA examiner determined that the Veteran “has experienced catastrophic stressors during his one year tour in Vietnam. He is troubled by any reminders of this experience. He meets diagnostic criteria for post traumatic stress disorder, severe, and I would recommend supporting his application for compensation.” A December 1994 rating decision denied entitlement to service connection for a psychiatric condition, claimed as PTSD. According to this decision, the evidence of record at the time consisted, in relevant part, of the Veteran’s service treatment records, service personnel records, VAMC hospitalization reports, and a VA examination report dated in July 1994. This decision notes that the Veteran was sent a letter in which “He was asked to describe his experiences in Vietnam that he considered ‘stressors’, but did not respond.” It notes that “Army personnel records show that the veteran was in Vietnam [from] 6/67 until 6/68, with duties listed as cook, assigned to an engineer battalion.” It described the Veteran’s reported stressors and described the criteria for service connection for PTSD. It then gave the following analysis: In this instance, the service records do not show evidence of participation in combat. Although the VA examiner gave a diagnosis of post traumatic stress disorder, that diagnosis was not supported by recognizable stressors with reasonably supporting evidence, with objective evidence linking current symptoms to the veteran’s military service. In the absence of reasonably supportive evidence for the cited stressors, there is no basis for service connection. In short, at the time of the December 1994 rating decision, the record established a current PTSD diagnosis (service connection element 1) and had linked this diagnosis to his military service (service connection element 2). Both of these elements were demonstrated in the July 1994 VA examination report. However, the December 1994 rating decision determined that the record did not demonstrate credible supporting evidence that the claimed in-service stressor occurred (service connection element 3). The Veteran was notified of this decision in December 1994, and he did not appeal. Therefore, that decision became final and new and material evidence was required pursuant to 38 C.F.R. § 3.156 to reopen it. On July 31, 2002, VA received a request to reopen the claim of entitlement to service connection for PTSD. For applications to reopen, such as this, received on or after August 29, 2001, a claim shall be reopened and reviewed if “new and material” evidence is presented or secured with respect to a claim that is final. Evidence is considered “new” if it was not of record at the time of the last final disallowance of the claim. “Material” evidence is evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In May 2003, the RO requested the Veteran’s entire personnel file. This request was filled in June 2003. A June 2003 rating decision denied service connection for PTSD. This decision references the need to reopen the previous claim. However, it does not discuss whether new and material evidence was submitted to reopen the claim or whether the claim was denied on the merits. In November 2003, the Veteran submitted a notice of disagreement to initiate an appeal of this claim. In May 2004, the RO sent a “Request for Verification of Stressor for PTSD Claim” to the U.S. Armed Services Center For Research Of Unit Records (USASCRUR). This request included the following: (1) the Veteran’s identifying information; (2) his unit assignment; (3) his dates of service in Vietnam; and (4) a description of his reported stressors. A copy of a personal statement and service personnel records, which contain the unit assignment and dates of Vietnam service, were enclosed. The RO received a reply from the USASCRUR in January 2005. In relevant part, the report states the following: We reviewed 1967 - 1968 unit histories submitted by the 65th Engineer Battalion (65th Engr. Bn). The histories document that the 65th Engr Bn provided combat support to the 25th Infantry Division (25th Inf Div). The 1967 history documents that the 65th Engr Bn was in direct support of the sixteen major combat operations of the 25th Inf Div during the year 1967. The histories also document the 65th Engr Bn’s areas of operation (AO’s) to include Cu Chi and Tay Ninh. Also, we reviewed January – May 1968 Daily Staff Journals (DJ’s) submitted by the 25th Inf Div. The DJ’s document attacks at Cu Chi on January 31, 1968, February 28, 1968, May 1, 1968, May 5, 1968, and May 7 – 9 1968. The RO granted service connection for PTSD in a March 2005 rating decision. It noted that: [R]eports received from the U.S. Armed Services Center for Unit Records Research confirm your account of combat artillery/mortar fire in Cu Chi from January through May of 1968…. Since the evidence of record confirms your exposure to traumatic combat related events during your military service, service connection for post traumatic stress disorder is established. The July 31, 2002 rating decision assigned a 70 percent rating effective July 31, 2002, which is the date on which VA received the Veteran’s request to reopen. The March 2005 rating decision notes the following: “If a claim is reopened within one year of a previous decision and subsequently allowed, the effective date of the grant of benefits will be based on the previous claim, as if a decision had never been rendered.” It further notes that, “If the reopened claim is received more than one year following the prior decision, and subsequently allowed, the effective date of the grant of benefits will be the date of the reopened claim.” It concluded that “The effective date of service connection for post traumatic stress disorder is July 31, 2002, the date of the previously disallowed claim, since additional evidence to reopen the claim was received within the one year appeal period.” The Veteran was notified of this decision in March 2005, but he did not initiate an appeal. Therefore, that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. After a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). A veteran can only attempt to overcome finality of the decision by a request for revision based on CUE, and only a request for revision based on CUE can result in the assignment of an earlier effective date. 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 kind 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. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). 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. 38 C.F.R. §§ 3.104(a), 3.400(k). In the case at hand, the Veteran filed his CUE motion in May 2015. In relevant part, he contends that VA misapplied 38 C.F.R. § 3.156(c) in assigning the effective date of July 31, 2002. This contention corresponds to prong (1)(b) of the CUE test described above, specifically, that “the statutory or regulatory provisions existing at the time were incorrectly applied.” It is therefore a valid CUE claim. The Board notes that 38 C.F.R. § 3.156(c) was amended following the issuance of the March 2005 rating decision that granted service connection for PTSD. For claims received prior to October 6, 2006, such as this one, the version of 38 C.F.R. § 3.156(c) (2005) as then in effect for newly received service department records provides: Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This encompasses official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. Under 38 C.F.R. § 3.156(c), a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim. Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011). The Veteran contends that his claim of entitlement to service connection for PTSD was ultimately granted based on the receipt of new service department records. Pursuant to this theory of entitlement, he contends that, because his claim was reconsidered based on newly discovered service department records, he is entitled to an effective date as early as the date of the original claim. 38 C.F.R. § 3.156(c) The Board finds that the Veteran’s service connection claim was granted in March 2005 based on newly-discovered service department records. Specifically, the RO submitted (1) the Veteran’s identifying information; (2) his unit assignment; (3) his dates of service in Vietnam; and (4) a description of his reported stressors to the USASCRUR to attempt stressor verification. The Veteran’s unit assignment and dates of service in Vietnam, which appeared in his service department records, had already been of record at the time of the December 1994 rating decision. Therefore, the additional service personnel records containing that evidence cannot be considered “new and material” for purposes of reconsidering the claim. In its reply, which served as the basis for verifying the Veteran’s reported stressors, the January 2005 USASCRUR expressly noted that “We reviewed 1967 – 1968 unit histories submitted by the 65th Engineer Battalion (65th Engr. Bn),” and that “Also, we reviewed January – May 1968 Daily Staff Journals (DJ’s) submitted by the 25th Inf Div.” The Board finds that the unit histories and Daily Staff Journals on which the USASCRUR report is based constitute “service department records” pursuant to 38 C.F.R. § 3.156(c), even though the USASCRUR report itself does not. The unit histories and Daily Staff Journals were produced by the service department itself in 1967 and 1968, contemporaneous with the stressor events that they corroborate. The Board therefore finds that the RO misapplied 38 C.F.R. § 3.156(c) in its March 2005 rating decision in that it did not consider the 1967 – 1968 unit histories and Daily Staff Journals to be “service department records” pursuant to that regulation. Because these service department records had not been located at the time of the December 1994 rating decision, they are considered to have been “newly discovered” at the time of the March 2005 rating decision. Therefore, the Board finds that the first prong of the three-pronged test outlined above (as articulated in Damrel) has been met. Turning to the second prong, the Board finds that this 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. Specifically, the Board finds it undebatable that the 1967 – 1968 unit histories and the 1968 Daily Staff Journals constitute “newly discovered service department records.” The Board also finds that, had this error not been committed, it would have manifestly changed the outcome of the case at the time it was made. The recognition that the 1967 – 1968 unit histories and Daily Staff Journals constitute “newly discovered service department records” would have led the RO to evaluate whether an effective date consistent with the initial date of claim was warranted under 38 C.F.R. § 3.156(c). (The Board notes that 38 C.F.R. § 3.156(c) was not mentioned in the March 2005 rating decision, making it unclear whether the RO even considered that regulation in its original assignment of the effective date.) Thus, the second prong of the three-prong test has been met. The Board also finds that the third prong has been satisfied, as this decision is based on the record and law that existed at the time of the prior adjudication in question. The Board notes, in particular, that it has applied the version of 38 C.F.R. § 3.156(c) that was in effect at the time of the March 2005 rating decision. In short, the Board finds that the RO committed CUE in its assignment of a July 31, 2002, effective date for the grant of service connection for PTSD. The Board must now determine the correct effective date. As noted in Mayhue, a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim. Both the Veteran and the Board have identified March 3, 1994, as the date of VA’s receipt of his original service connection claim. (See May 2015 fax from Veteran’s accredited representative.) (continued on next page) Therefore, entitlement to a date of March 3, 1994, but no earlier, for the grant of service connection for PTSD is warranted. The appeal is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.