Citation Nr: 21003043 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-59 991 DATE: January 19, 2021 ORDER Entitlement to an effective date earlier than March 6, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD), including based on clear and unmistakable error (CUE) in a prior decision, is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the military from April 1977 to February 1979, and his original claim for service connection for a nervous disorder was received in March 1979, so very shortly after conclusion of his service, but was subsequently considered and denied in a June 1979 rating decision. 2. In August 1979, in response, the Veteran filed a Notice of Disagreement (NOD) to initiate an appeal of that initial decision and the local regional office (RO) resultantly provided him a Statement of the Case (SOC) in September 1979. 3. He then in March 1980 completed the steps necessary to “perfect” his appeal of that initial decision by also filing a timely VA Form 9, Substantive Appeal, and his appeal accordingly was certified to the Board in May 1980. 4. In October 1980, the Board remanded that initial claim of entitlement to service connection for a nervous disorder to obtain outstanding military personnel records and service treatments records and to afford him a VA examination. 5. After the RO completed that directed remand development and continued to deny the claim, so, too, did the Board on appeal in an October 1982 decision. 6. The Veteran was notified of the Board’s denial of his claim in November 1982 correspondence. 7. He did not in response file a motion for reconsideration of that decision or present new and material evidence to reopen his claim until much more recently, on March 6, 2014, when he submitted a VA Form 21-4138, Statement in Support of Claim, requesting to reopen his claim for service connection for an acquired psychiatric disorder – which he now characterized as psychosis and schizophrenia as well as adjustment disorder with depressed mood and posttraumatic stress disorder (PTSD). 8. This more recent claim eventually was granted in a January 2016 RO rating decision with an effective date of the award retroactive to March 6 ,2014, so back to the date of receipt of his more recent claim for this disability (i.e., back to the date he re-filed this claim on the VA Form 21-4138). 9. The Board’s earlier, October 1982, decision is final and binding based on the evidence then of record and was not fatally flawed, egregious, or indisputably erroneous so did not involve CUE to vitiate its finality (res judicata). CONCLUSION OF LAW The criteria are not met for an effective date earlier than March 6, 2014, for the grant of service connection for PTSD. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.400.   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1977 to February 1979. Very recently, in November 2020, in support of this claim for an earlier effective date for his award, the Veteran testified before the undersigned Veterans Law Judge of the Board during a “virtual” hearing. A transcript of the proceeding is of record. In his hearing testimony, the Veteran argued that the effective date of his award should go back to when he first filed his claim (meaning back to 1979, although he mistakenly said it, instead, was in 1980) because his mental state at that earlier point in time simply precluded him from continuing to process his earlier claim. He made especial note of the fact that he had taken beatings at Ft. Leavenworth, was in and out of hospitals, so constantly being treated for his poor mental health, and as a result did not have the needed mental capacity to do much, if anything. He therefore believes it is unreasonable and morally unjust to expect him to have continued processing that initial claim when he simply could not, given those mitigating circumstances. He was very tearful and passionate during his entire testimony in maintaining it would be an injustice not to grant an earlier effective date back to his initial claim. For reasons and bases that will be discussed, however, the Board finds that the existing effective date is correct according to the applicable statutes, VA regulations, and caselaw. There is no legal basis for granting any earlier effective date and, as will be explained, the Veteran has not shown that the prior denial of his claim involved CUE such that the “finality” of the earlier decision is vitiated to, in turn, allow for assignment of any earlier effective date. Generally, the effective date for an award of service connection is the day following separation from active service – if the claim was filed within a year after separation from service and granted. Otherwise, the effective date can be no earlier than when the claim was filed. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). Moreover, even if a claim is filed within a year of separation from service, but conversely denied, then the effective date can be no earlier than when the Veteran subsequently refiles the claim (petitions to reopen it) – unless it is shown there was CUE in the earlier decision denying the claim. Here, by way of relevant procedural history, the Veteran’s original claim of entitlement to service connection for a “nervous disorder” was received in March 1979, so well within a year of his separation from service (indeed, the month after conclusion of his service), but subsequently was denied in a June 1979 rating decision. In August 1979, in response, he filed a timely NOD to initiate an appeal of that initial decision, and the RO resultantly provided him an SOC in September 1979. He then “perfected” (i.e., completed) his appeal in March 1980 by also filing a VA Form 9, Substantive Appeal, and his appeal accordingly was certified to the Board in May 1980. The Board remanded the claim (i.e., sent it back to the RO) in October 1980 because it needed to be further developed – including by obtaining outstanding military personnel records (MPRs) and service treatments records (STRs) and affording the Veteran a VA mental status examination. Following completion of that directed development by the RO, the Board denied his claim in an October 1982 decision and notified him of that in November 1982 correspondence. The Veteran did not file a motion for reconsideration of the Board’s decision or present any new and material evidence within a year following that decision to reopen his claim. Therefore, that initial decision by the Board in October 1982 became a final and binding determination based on the evidence then of record. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.1100 (2018). It was not until much more recently, on March 6, 2014, when the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, requesting to reopen his claim for service connection for an acquired psychiatric disorder – which he now characterized as a psychosis and schizophrenia as well as adjustment disorder with depressed mood and PTSD. His claim eventually was granted in a January 2016 RO rating decision with an effective date of March 6, 2014, since on that date he had filed the petition to reopen his claim.   Significantly, with just few exceptions, Board decisions are final when issued. 38 C.F.R. § 20.1100. Thus, the Board’s earlier October 1982 decision denying service connection for a nervous disorder became final and binding on October 12, 1982, the date the Board issued that earlier decision, since, as mentioned, the Veteran did not in response file a timely motion for reconsideration of that decision or present any new and material evidence – including records concerning his service (e.g., MPRs or STRs) during the immediately ensuing year after receiving notification of that decision (meaning from November 1982 to November 1983) or that were not a part of the file when the Board initially adjudicated his claim. Id. Because of the “finality” (res judicata) of the October 1982 Board decision earlier considering and denying this claim, as explained during the hearing, there is no legal authority for the Board to assign an effective date prior to March 6, 2014, for the eventual grant of service connection for PTSD. This is true even equating the Veteran’s initial claim in 1979 for a generic “nervous disorder” as inclusive of PTSD since VA did not adopt the PTSD nomenclature until 1980 or thereabouts. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In another more recent precedent case, Murphy v. Wilkie, No. 17-3080 (December 21, 2020), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) resolved what had been an apparent tension between Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), in which the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim, and Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), in which the Federal Circuit held, in the context of claimants seeking to reopen previously denied claims based on new and material evidence, that claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims. In Murphy, claims for service connection for PTSD and schizophrenia had been previously denied and the Veteran sought reopening of what he characterized as a claim for service connection for PTSD. The Board reopened the claim for service connection for PTSD and denied it on the merits and the Court affirmed, with both the Board and Court finding that the claims for service connection for PTSD and schizophrenia were separate claims under Boggs, thus limiting the appeal to service connection for PTSD as the application to reopen had been characterized by the Veteran. The Court held that Clemons did not apply to applications to reopen, but the Federal Circuit Court disagreed. The Federal Circuit Court held that what it termed the “Clemons lenient-claims-scope rule” applies to applications to reopen and “the proper inquiry for the VA in reviewing a pro se claimant’s request to reopen filing is to determine what diagnoses, conditions, or illnesses can reasonably be understood as included in the request, this inquiry informed by, but not limited to, looking to what the particular veteran could have reasonably expected to have included in the filing of such a request and the evidence of record.” But even accepting that initial claim for a generic “nervous disorder” as also inclusive of a claim for PTSD, when there is a prior decision on that initial claim (here, the Board’s October 1982 decision), and it becomes final and binding, 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 held 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.” 16 Vet. App. at 248. Moreover, to vitiate the finality (binding effect) of that prior October 1982 Board decision, so as to in turn allow assignment of an earlier effective date back to that earlier point in time, the Veteran must collaterally attack that prior decision and show there was CUE. 38 C.F.R. § 3.105(e). The Board since has implemented regulations governing allegations of CUE in prior Board decisions versus in prior RO decisions. See 38 C.F.R. §§ 20.1000, 20.1001, etc. The Board’s October 1982 decision subsumed the RO’s preceding June 1979 rating decision. When a Board decision affirms a RO decision, any alleged errors made in the RO decision are treated as subsumed by the Board's decision. 38 C.F.R. § 20.1104.   After being subsumed, the RO decision cannot be challenged, i.e., collaterally attacked, based on CUE. Instead, a CUE motion must be filed challenging the Board decision that subsumed the RO decision. See 38 U.S.C. §§ 5109A, 7104(b); Brown v. West, 203 F.3d 1378, 1380-82 (Fed. Cir. 2000). 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 (1993) (citing Russell, 3 Vet. App. at 313). Therefore, a Veteran who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). To establish CUE in a prior decision, the requirements of a three-pronged test must be met: (1) either the facts known at the time of the decision being collaterally attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE is a very specific and rare kind of error of fact or 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo, 6 Vet. App. at 43-44. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. See Baldwin, 13 Vet. App. at 5; Damrel, 6 Vet. App. at 246. 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, 6 Vet. App. at 43-44. In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. In order to reasonably raise a claim of CUE, the Veteran must provide some degree of specificity as to what the alleged error is. See Simmons v. Principi, 17 Vet. App. 104, 114 (2003); Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff’d sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the Veteran cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). To show that CUE occurred, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Here, though, the Veteran has not identified any CUE in the Board’s October 1982 decision that, in turn, would now permit the Board to overturn that earlier decision in hindsight and allow for assignment of an earlier effective date back to the time of receipt of his initial claim in 1979 for a mental disorder. He and his representative have not made any sufficiently specific allegation of impropriety, misapplication of law or regulations, or factual inaccuracy concerning this claim, if only considering the evidence of record at the time of that earlier decision. As already mentioned, they allege that his mental state during the 1980s, coupled with his lack of legal representation, precluded him from following through with the claims process, specifically, owing to his inability to file the proper paperwork for reconsideration of the Board’s October 1982 decision after being notified of it in November 1982. See November 2020 Board Hearing Transcript. But, as explained during the hearing, although the Board is certainly sympathetic to his situation, especially then, none of his contentions provide legal grounds for vacating the Board’s prior October 1982 decision.   To reiterate, in the CUE context, it is only permissible to consider the record and law that existed at the time of the prior decision now being collaterally attacked, not also evidence since submitted or otherwise obtained after the fact. A finding of CUE must be based solely on the evidence of record at the time of the decision in question. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Again, the Board is sympathetic to the Veteran’s claim and the circumstances of the events surrounding this appeal, especially as relating to his mental state in 1979 and 1982 versus now (or at least since 2014 when he re-filed his claim). But the applicable statutes and regulations as written preclude a grant of benefits as of an earlier date. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Alternatively, the Veteran’s argument also fails to the extent that it is predicated on any assertion that the CUE lies within the initial June 1979 RO rating decision. A RO decision denying a claim, which is later appealed to the Board and affirmed, is subsumed by that Board decision and may not be collaterally attacked via CUE. See Moffitt v. Brown, 10 Vet. App. 214, 224-25 (1997); Talbert v. Brown, 7 Vet. App. 352, 355 (1995); 38 C.F.R. § 20.1104. The June 1979 rating decision was subsumed by the October 1982 Board decision as it clearly addressed the same claim and denied service connection for what was then characterized as a generic nervous disorder. Therefore, the June 1979 rating decision is no longer subject to review for CUE.   The Board acknowledges the Veteran’s sincere belief that, because he has experienced the same symptoms since his original claim, the effective date of his award should go back to that earlier point in time. However, by law, with respect to claims to reopen, an effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii). Accordingly, the earliest possible effective date for the grant of service connection is March 6, 2014, since that is when the Veteran re-filed his claim (i.e., submitted the petition to reopen it). As there is no legal entitlement to an earlier effective date, the claim must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.