Citation Nr: 21000549 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-32 498 DATE: January 5, 2021 ORDER An earlier effective date to April 10, 1974 is granted for the award of service connection for an acquired psychiatric disorder – including especially for anxiety neurosis and posttraumatic stress disorder (PTSD) because there was clear and unmistakable error (CUE) in an August 7, 1974 rating decision previously considering and denying this claim. FINDINGS OF FACT 1. The Veteran's original claim for service connection for a nervous condition was received on April 10, 1974 and denied in an August 7, 1974 rating decision. He did not submit a Notice of Disagreement (NOD) to initiate an appeal of that decision and new and material evidence was not actually or constructively received during the appeal period. 2. However, that August 7, 1974 rating decision failed to correctly apply the governing law then in effect, and it was undebatable, even then, that the Veteran’s acquired psychiatric disorder was the result of his military service. That decision therefore was fatally flawed and egregious. CONCLUSIONS OF LAW 1. Since not appealed, the August 7, 1974 rating decision that earlier considered and denied entitlement to service connection for a nervous condition is final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.105(a), 3.156(b), 20.300, 20.1103 (2018). 2. But that August 7, 1974 rating decision earlier considering and denying this claim for an acquired psychiatric disorder involved CUE, so that prior decision is overturned and the criteria are met for an earlier effective date of April 10, 1974 for the eventual award of service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 1110, 1111, 5110; 38 C.F.R. §§ 3.105, 3.303, 3.304, 3.306, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to November 1970. This appeal to the Board of Veterans’ Appeals (Board) is from a March 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing in August 2012 before a Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. However, the VLJ who presided over that hearing is no longer employed at the Board, so the Veteran was offered another hearing before a different VLJ of the Board who, in turn, would ultimately decide this appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. But, by letter dated October 20, 2016, the Veteran waived his right to another hearing before this Board. In November 2014, March 2017, and December 2017, the Board remanded this claim for further development. There since has been the acceptable substantial compliance with the remand directives, including especially in terms of complying with procedural requirements and providing a rating decision in response to the Veteran’s contention regarding CUE in a prior rating decision many years ago. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has several mental health disorder diagnoses, including anxiety neurosis and PTSD. Part of the basis of his appeal is that the effective date for his PTSD award should be earlier – as of April 10, 1974. However, PTSD was not an established psychiatric diagnosis in 1974 (see the Diagnostic and Statistical Manual of the American Psychiatric Association, 2d edition (DSM-II) (1968), which was in effect in April 1974). Indeed, VA did not adopt the PTSD nomenclature until 1980 or thereabouts. Nonetheless, since he filed a claim for service connection for a nervous condition on April 10, 1974, in determining the scope of that claim the Board must consider his description of the claim, symptoms described, and the information he submitted or developed in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given the United States Court of Appeals for Veterans Claims (Court’s) holdings in Clemons and the uncertainty of the Veteran's specific diagnosis, or whether some versus all are warranted, the Board has expanded his claim to include all diagnoses to date. The Board, therefore, is recharacterizing his claim for an earlier effective date as more generally for an acquired psychiatric disorder. This will provide the most favorable review of his claim in keeping with the Court's holdings in Clemons. Id. An earlier effective date of April 10, 1974 is granted for the award of service connection for an acquired psychiatric disorder including a nervous condition, anxiety neurosis, and PTSD because there was CUE in an August 7, 1974 rating decision earlier considering and denying this claim The effective date of disability compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The exception to this rule is when a claim is received within one year after separation from service. If a claim is received within one year after separation from service, the effective date is the day following separation from active service. 38 C.F.R. § 3.400(b)(2). Otherwise, the earliest possible effective date is when the claim eventually was filed. However, if the Veteran does not timely appeal that eventual decision, then the earliest possible effective date is when he later files a petition to reopen the claim. That can occur again and again, each time the claim is denied, not appealed, and there is a subsequent petition to reopen the claim. See Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). A previous agency of original jurisdiction (AOJ), i.e., RO determination that is final and binding – such as if not appealed, will be accepted as correct in the absence of CUE. Where evidence establishes such error, however, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The March 27, 2009 rating decision that precipitated this appeal granted service connection for PTSD and assigned an initial 30 percent evaluation for this disability with an effective date of June 20, 2008, the date the RO had received the Veteran's claim for this mental disorder. In response, the Veteran filed a March 26, 2010 NOD arguing that an earlier effective date is warranted for the award because of mistakes made when initially adjudicating his claim way back in August 1974, but he did not appeal that earlier decision. As already alluded to, when a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of the reopened claim, not instead the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). In Sears, the Court explained that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he must show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). 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. However, 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. 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 the Veteran has pled his claim of CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). To wit, he asserts the RO ignored the results of the compensation examination he underwent in response to his initial claim and that the only probative evidence available at the time of the August 1974 rating decision was entirely supportive of his claim, not instead against it. The Board agrees and finds CUE in the August 1974 rating decision, so reason to vitiate the finality of that prior decision and, in turn, allow assignment of an earlier effective date back to April 10, 1974, when the Veteran filed his initial claim for service connection for what was then characterized as a generic nervous condition. More specifically, the Board finds that the rating board erred in failing to apply the statutory and regulatory provisions extant at that time, and that it is indisputable that the evidence of record even at that time demonstrated that service connection for a nervous disorder was warranted. In making this determination to assign an earlier effective date, the Board observes that, in 1974, service connection meant that the facts, shown by the evidence, established that a particular disease or injury resulting in disability was incurred coincident with active military, naval, or air service, or, if preexisting such service, was aggravated therein. 38 U.S.C. § 310 (1974); 38 C.F.R. § 3.303(a) (1974). The Veteran’s service treatment records (STRs) revealed that he had sustained shrapnel wounds from a mortar attack, but they otherwise were unremarkable for complaints, treatment or diagnosis of a nervous condition – including of a stress-related mental illness (again, when recognizing that, for all intents and purposes, there was no such thing at that time as PTSD, per se). During a June 1974 VA examination, the Veteran described being hit by shrapnel that had caused injury to his right shoulder and killed a sergeant standing right next to him. The Veteran related that, ever since that incident, he had been nervous, broke out in cold sweats, felt afraid, developed pain in his chest and was fearful that he would have a heart attack. He further indicated that he took nerve pills in Vietnam and that he later took them also from a doctor once he got out of service. In describing the Veteran’s mental health status, that VA examiner noted that the Veteran had recounted sleeping poorly and having nightmares. He was upset about what the service had done to him, tended to dwell on his nervous problems and indicated he had never been that way before. The VA examiner diagnosed anxiety neurosis, mild-to-moderate severity, manifested by intermittent feelings of anxiety and intermittent difficulty with sleep.   When initially adjudicating the Veteran’s claim in the August 1974 rating decision that is now at issue, the RO repeated the information contained in the report of that June 1974 VA examination but nonetheless denied the claim without providing any rationale. During his more recent August 2012 hearing before this Board, the Veteran testified that he was told that his nervous condition was from being raised on a farm, so it preexisted his entry into service. See August 2012 Board hearing transcript at pg. 4. Only the evidence of record in 1974, however, may be considered in determining whether that initial 1974 decision involved CUE. Regarding the presumption of soundness, in 1974 the law provided, as it does today, that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. At the time of the August 1974 RO rating decision, the law concerning preexisting conditions made distinctions based upon war and peacetime service. But, as the Veteran had wartime service, this former distinction has no impact on this appeal. The Board finds that the presumption of soundness attaches as there was an entrance examination during which this later complained of disorder was not detected (“noted”). The report of the Veteran’s military entrance examination does not contain any notations of a pre-existing nervous condition of any sort. If, as here, a disorder was not "noted" when entering service, VA must show by clear and unmistakable evidence both the preexistence of the condition and the lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306.   Notably, though, the Board also finds that the record does not contain the required clear and unmistakable evidence that the Veteran's nervous condition preexisted his service or was not aggravated by his service. The medical evidence in the file, instead, suggests that the etiology of his nervous condition, eventually diagnosed as PSTD, stems from the mortar attack and shrapnel injury he sustained in service. Thus, the presumption of soundness has not been rebutted. Resultantly, the Board finds that, had the statutory and regulatory provisions been correctly applied to the evidence of record at the time of the initial August 1974 rating decision, it is undebatable that this necessarily would have resulted in a grant of service connection for a nervous disorder rather than denial of the claim. The July 1974 VA compensation examiner was able to confirm a diagnosis based on the Veteran’s then current symptoms of anxiety, inability to sleep, cold sweats, and fear, which were associated with the circumstances surrounding his injuries in service and witnessing the death of a sergeant who was standing right next to him during a mortar attack. Moreover, the Veteran correctly contends that this is more than a simple disagreement with the “weighing of the evidence” in that initial decision since there was no other evidence to be considered in that 1974 decision that could have attributed his mental disorder to anything other than what unfortunately had occurred to him during his service. Therefore, the Board finds the Veteran has adequately set forth errors of fact or law and shown why the result of that initial August 1974 RO rating decision would have been manifestly different but for the errors. His CUE motion as pertaining to his claim for an effective date earlier than June 20, 2008, for the eventual award of service connection for his PTSD demonstrates a failure on the RO's part in that initial August 1974 decision to apply the correct statutory and regulatory provisions to the correct and relevant facts.   Having determined there was CUE in that initial August 1974 rating decision allows for assignment of an earlier effective date of April 10, 1974, which is the day the Veteran’s initial claim was received. Accordingly, this earlier effective date of April 10, 1974, for the award of service connection for his mental disorder is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.