Citation Nr: 21061487 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-61 423 DATE: October 4, 2021 ORDER Entitlement to an effective date prior to August 25, 2008, for the grant of service connection for PTSD, to include whether there was clear and unmistakable error (CUE) in a May 2011 rating decision, is denied. FINDINGS OF FACT 1. A July 2006 rating decision awarded service connection for PTSD and assigned an effective date of August 25,2008; the Veteran was notified of the decision in September 2006. 2. The Veteran did not appeal the September 2006 rating decision nor was new and material evidence received within one year of the decision. 3. VA received the Veteran's informal application to reopen the previously denied claim on August 25, 2008. CONCLUSIONS OF LAW 1. The July 2006 rating decision became final. 38 U.S.C. § 7104. 2. The criteria for an effective date prior to August 25, 2008, for the grant of service connection for PTSD, to include whether there was CUE in a May 2011 rating decision, are not met. 38 U.S.C. §§ 5108, 5109A, 5110, 7105; 38 C.F.R. §§ 3.104, 3.105, 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION This case is before the Board on appeal of a March 2015 rating decision that determined that there was no CUE in a May 2011 rating decision. In December 2017 the Veteran requested a hearing. See 12/04/2017. Prior to the hearing, the Veteran was declared incompetent, see 03/26/2018 Rating Decision, and he did not appear at the virtual hearing due to the severity of his psychiatric disability and dementia. His wife, and former fiduciary, appeared at the hearing in the Veteran's stead. Entitlement to an effective date prior to August 25, 2008, for the grant of service connection for PTSD, to include whether there was CUE in a May 2011 rating decision, is denied. The Board will first outline the relevant history. To start, VA received a claim from the Veteran for nerves within the first year after his discharge, but it was denied. See 03/30/1979 Rating Decision, 05/07/1979 Notification. The Veteran did not appeal the decision, so it became final. See also 10/22/1984 Rating Decision, 10/31/1984 Notification. VA received another application to reopen the claim in 2006, which was accompanied with a private positive nexus opinion. See 02/15/2006 Correspondence; 04/14/2006 Third Party Correspondence. In a July 2006 rating decision, the AOJ determined that there was no evidence to verify the Veteran's claimed stressor. Hence, the claim was denied. See 38 C.F.R. § 3.304(f); see also 07/29/2006 Rating Decision. A September 2006 VA letter notified the Veteran of the decision. See 09/12/2006 Notification. The Veteran did not appeal the decision nor was additional material information received within one year of the decision. Hence, it became final. In 2008 VA received correspondence from the Veteran which the AOJ treated as an informal application to reopen the previously denied claim. See 08/25/2008 Correspondence. The AOJ determined that new and material evidence was not received to reopen the claim and denied it. See 10/13/2009 Rating Decision. This time, the Veteran timely appealed the decision. See 03/16/2010 Third Party Correspondence. The Veteran's claim was eventually reopened, and service connection granted by the May 2011 rating decision. The AOJ assigned the effective date based on the date the Veteran's informal application to reopen the claim was received, August 25, 2008. That was the earliest effective date allowable by the applicable regulations. Hence, the Veteran's effective date was assigned in accordance with the applicable law. 38 C.F.R. § 3.400(r). The Veteran has alleged CUE in this case. In numerous written submissions, he asserts that his effective date should have been retroactive to the date he entered active service, December 1976, since the symptoms of his disability had onset during his active service. He also claimed initial ignorance that he could file for VA compensation. The Board notes that his wife essentially repeated those assertions at the hearing. Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of a duly constituted rating agency... shall be final and binding... based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C. § 5108. An exception to this rule is when the VA has made a clear and unmistakable error in its decision pursuant to 38 C.F.R. § 3.105. See also 38 U.S.C. § 210(c), 7103. Under 38 C.F.R. § 3.105(a), a prior decision must be reversed or amended where evidence establishes CUE. CUE is determined by three criteria: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (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. See Damrel v. Brown, 6 Vet. App. 242 (1994); see Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999). To prove the existence of CUE as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision." Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000). It has been held that 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Board must emphasize that the United States Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. A disagreement with how facts were evaluated is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A failure in the duty to assist does not establish CUE. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In Cook, the United States Court of Appeals for the Federal Circuit (Federal Circuit) emphasized that a purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. In other words, to present a valid claim of CUE, the claimant cannot simply request that VA reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). Further, an alleged failure in the duty to assist by the AOJ may never form the basis of a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). The fact that medical knowledge was not advanced to its current state may not form the basis for a valid claim of CUE, because it is premised upon facts that were not then of record. Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one that would have manifestly changed the outcome at the time it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). In light of the foregoing, the Veteran must argue that either the correct facts were not considered by the AOJ or that applicable laws and regulations were not correctly applied in the rating decision at issue. Such a determination must be based on the record and the law that existed at the time of that rating decision. Eddy v. Brown, 9 Vet. App. 52 (1996). 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 adjudicative 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. The record to be reviewed for CUE must be based on the record and the law that existed at the time of the challenged rating decision. 38 C.F.R. § 3.105. Regarding the earlier denials of service connection, the Veteran has not pointed to any specific mistake of fact, or misapplication of law that, based on the record as it then existed, would undebatably result in an award of service connection at that time. Indeed, the ultimate award of service connection in a subsequent May 2011 rating decision was based on a positive VA opinion dated in 2011; this was obviously not of record at the time of the earlier denials. Moreover, findings from the earlier decisions that a stressor had not been established are also not shown to be undebatably incorrect based on the record as the time such findings were made, or that reaching the opposite conclusion would undebatably have resulted in a grant of service connection. Accordingly, there is no finding of CUE regarding the October 1984 and July 2006 rating decisions and thus any effective date would need to follow the date of that decision. The Board has also considered whether the effective date assigned in the May 2011 rating decision constitutes clear and unmistakable error. The provisions that dictate the assignment of effective dates that existed in 2011 are as follows: Direct service connection (§3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated. 38 C.F.R. § 3.400(b)(ii)(B)(2). Reopened claims. Date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). As is evident from applying the relevant procedural history in this case to the regulatory provision set forth above, there simply is no provision of law that would have allowed an earlier effective date. Accordingly, the claim is denied. The Veteran has not submitted or cited VA to any evidence not known to the rating board at the time the May 2011 rating decision was issued. Neither has he demonstrated that the rating board did not comply with the applicable law. Although his disability had onset in active service, the effective date for the award of his disability compensation is determined by the date on which a claim, to include a claim to reopen, was received. The facts of record, as set forth above, show that the AOJ correctly assigned the Veteran's claim in accordance with applicable law. Hence, there was no CUE in the May 2011 rating decision. An allegation of CUE does not actually represent a "claim" but rather is a collateral attack on a final decision. The Veteran has alleged CUE in a May 2011 rating decision that granted service connection for PTSD and assigned a total rating, effective August 25, 2008. The Agency of Original Jurisdiction (AOJ) determined that August 25, 2008 was the date on which VA received the Veteran's informal application to reopen the claim which was last previously denied in 2006. See 38 U.S.C. § 7105. In numerous written submissions, the Veteran asserts that his effective date should have been retroactive to the date he entered active service, December 1976, since the symptoms of his disability had onset during his active service. He also claimed initial ignorance that he could file for VA compensation. The Board notes that his wife essentially repeated those assertions at the hearing. Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of a duly constituted rating agency... shall be final and binding... based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C. § 5108. An exception to this rule is when the VA has made a clear and unmistakable error in its decision pursuant to 38 C.F.R. § 3.105. See also 38 U.S.C. § 210(c), 7103. Under 38 C.F.R. § 3.105(a), a prior decision must be reversed or amended where evidence establishes CUE. CUE is determined by three criteria: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (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. See Damrel v. Brown, 6 Vet. App. 242 (1994); see Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999). To prove the existence of CUE as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision." Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000). It has been held that 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Board must emphasize that the United States Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. A disagreement with how facts were evaluated is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A failure in the duty to assist does not establish CUE. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In Cook, the United States Court of Appeals for the Federal Circuit (Federal Circuit) emphasized that a purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. In other words, to present a valid claim of CUE, the claimant cannot simply request that VA reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). Further, an alleged failure in the duty to assist by the AOJ may never form the basis of a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). The fact that medical knowledge was not advanced to its current state may not form the basis for a valid claim of CUE, because it is premised upon facts that were not then of record. Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one that would have manifestly changed the outcome at the time it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). In light of the foregoing, the Veteran must argue that either the correct facts were not considered by the AOJ or that applicable laws and regulations were not correctly applied in the rating decision at issue. Such a determination must be based on the record and the law that existed at the time of that rating decision. Eddy v. Brown, 9 Vet. App. 52 (1996). 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 adjudicative 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. The record to be reviewed for CUE must be based on the record and the law that existed at the time of the challenged rating decision. 38 C.F.R. § 3.105. Regarding the initial denial of service connection in July 2006, the Veteran has not pointed to any mistake of fact, or misapplication of law that, based on the record as it then existed, would undebatably result in an award of service connection at that time. Indeed, the ultimate award of service connection in a subsequent May 2011 rating decision was based on a positive VA opinion dated in 2011; this was obviously not of record at the time of the original 2006 denial. Accordingly, there is no finding of CUE regarding the July 2006 rating decision and thus any effective date would need to follow the date of that decision. The Board has also considered whether the effective date assigned in the May 2011 rating decision constitutes clear and unmistakable error. The provisions that dictate the assignment of effective dates that existed in 2011 are as follows: Direct service connection (§3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated. 38 C.F.R. § 3.400(b)(ii)(B)(2). Reopened claims. Date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). As is evident from the regulatory provision set forth, for the Veteran to prevail, his claim and entitlement to disability compensation must have been received within one year of his discharge from active service in order to have received an effective date as of the day after his discharge. There simply is no provision of law that would have allowed an effective as of the date of his entry into active service. VA did receive a claim from the Veteran for nerves within the first year after his discharge, but it was denied. See 03/30/1979 Rating Decision, 05/07/1979 Notification. The Veteran did not appeal the decision, so it became final. See also 10/22/1984 Rating Decision, 10/31/1984 Notification. There has been no specific contention of CUE as to that decision, nor does the Board see any basis for finding CUE on its own initiative. VA received another application to reopen the claim in 2006, which was accompanied with a private positive nexus opinion. See 02/15/2006 Correspondence; 04/14/2006 Third Party Correspondence. In a July 2006 rating decision, the AOJ determined that there was no evidence to verify the Veteran's claimed stressor. Hence, the claim was denied. See 38 C.F.R. § 3.304(f); see also 07/29/2006 Rating Decision. A September 2006 VA letter notified the Veteran of the decision. See 09/12/2006 Notification. The Veteran did not appeal the decision nor was additional material information received within one year of the decision. Hence, it became final. In 2008 VA received correspondence from the Veteran which the AOJ treated as an informal application to reopen the previously denied claim. See 08/25/2008 Correspondence. The AOJ determined that new and material evidence was not received to reopen the claim and denied it. See 10/13/2009 Rating Decision. This time, the Veteran timely appealed the decision. See 03/16/2010 Third Party Correspondence. As noted earlier, the Veteran's claim was eventually reopened, and service connection granted by the May 2011 rating decision. The AOJ assigned the effective date based on the date the Veteran's informal application to reopen the claim was received, August 25, 2008. That was the earliest effective date allowable by the applicable regulations. Hence, the Veteran's effective date was assigned in accordance with the applicable law. 38 C.F.R. § 3.400(r). The Veteran has not submitted or cited VA to any evidence not known to the rating board at the time the May 2011 rating decision was issued. Neither has he demonstrated that the rating board did not comply with the applicable law. Although his disability had onset in active service, the effective date for the award of his disability compensation is determined by the date on which a claim, to include a claim to reopen, was received. The facts of record, as set forth above, show that the AOJ correctly assigned the Veteran's claim in accordance with applicable law. Hence, there was no CUE in the May 2011 rating decision. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.