Citation Nr: 21061812 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-24 920A DATE: October 5, 2021 ORDER Due to a due process error, the August 2020 Board of Veterans' Appeals (Board) decision is vacated. Revision of the September 2007 rating decision assigning an effective date of October 9, 2001, for service connection for PTSD based on CUE is granted. FINDINGS OF FACT 1. At the time the August 2020 Board decision was issued, a brief from the appellant's representative had been submitted but not yet associated with the record. As a result, the Board was not able to properly consider the appellant's arguments prior to issuing the August 2020 decision. 2. Service connection for PTSD was granted from October 9, 2001, in a September 2007 rating decision that became final because the Veteran did not submit a notice of disagreement or new and material evidence within the appeal period. 3. The statutory and regulatory provisions applicable to the Veteran's claim were not correctly applied, and the failure to correctly apply those laws and regulations manifestly changed the outcome of the September 2007 rating decision. CONCLUSIONS OF LAW 1. The August 2020 Board decision that denied revision of the September 2007 rating decision resulted in a denial of due process and is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. The criteria for entitlement to revision of the September 2007 rating decision that assigned an effective date of October 9, 2001, for PTSD have been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105, 3.156(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1967 to August 1970, including two tours in the Republic of Vietnam This matter comes before the Board on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In September 2018, VA was notified that the Veteran had died in August 2018 while his claim was still pending. Since that time, the RO has recognized the appellant, his surviving spouse, as the substitute claimant. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. By way of procedural background, the Board issued a prior decision in August 2020 in which the Board denied entitlement to revision of a September 2007 rating decision that assigned an effective date of October 9, 2001, for service connection for PTSD. To that end, the Board found that the September 2007 rating decision did not contain CUE because the RO had properly applied 38 C.F.R. § 3.156(c), regarding the addition of new and relevant service records following denial of the Veteran's claim for service connection for a nervous condition and multiple requests to reopen his claim. The appellant, through her representative, filed a Motion for Reconsideration/Vacatur regarding this decision. Upon further review, the Board will vacate its August 2020 decision. As such, the Motion for Reconsideration is moot. Vacatur An appellant decision may be vacated by the Board at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. In the August 2020 decision, the Board denied the Veteran's request to revise the September 2007 rating decision assigning an October 9, 2001, effective date for service connection for PTSD. In that decision, the Board focused on whether the RO properly applied the version of 38 C.F.R. § 3.156(c), regarding new and relevant service records, that became effective on October 6, 2006. More specifically, pursuant to 38 C.F.R. § 3.156(c)(1) of the amended regulation, VA will reconsider a claim where VA received or associated with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a claim. Relevantly, the amended regulation went on to state in 38 C.F.R. § 3.156(c)(2) that 38 C.F.R. § 3.156(c)(1) did not apply to records that VA could not have obtained when it originally decided a claim because a claimant failed to provide sufficient information to identify and obtain them from the appropriate official source. However, as set forth in a brief that was submitted prior to the date of the Board's decision but not yet of record at the time of its decision, the previous version of 38 C.F.R. § 3.156(c) did not limit the application of the rule to instances where a veteran had provided sufficient information to identify and obtain service records that were later added to the file. In the brief, the appellant's representative argued that the Board should consider whether the RO had failed to apply the pre-amendment version of 38 C.F.R. 38 C.F.R. § 3.156(c) in its September 2007 rating decision. Because the brief was not yet of record at the time of the Board's decision, the Board was unable to consider it. This constitutes a denial of due process of law. For the foregoing reasons, the August 2020 Board decision is vacated. Having vacated the August 2020 Board decision, the Board will once again consider the issue of entitlement to an earlier effective date for service connection for PTSD, including on the basis of CUE in the September 2007 rating decision. Earlier Effective Date The Veteran originally filed for service connection for a nervous condition in June 1971. The claim was received by VA on June 16, 1971, and denied in an October 1971 rating decision that became final. Subsequently, the Veteran filed multiple requests to reopen his previously denied claim that were denied in January 1977, April 1978, August 1983, August 1989, June 1990, April 1996, and February 1997 rating decisions. After filing another request to reopen in October 2001 and continuously pursuing it, service connection was eventually granted for PTSD from October 9, 2001 (i.e., the date VA received his most recent request to reopen his claim), in a September 2007 rating decision. The grant of service connection was based in part on the receipt of operational reports from the 244th Aviation Company that confirmed that the camp he was stationed at in Vietnam between January 1970 and March 1970 sustained rocket and mortar attacks. VA received these records, which had not previously been in the claims file, from the Veteran's then-representative in April 2004. The appellant's representative argues that revision of the September 2007 rating decision is warranted based on CUE. More specifically, her representative contends that the rating decision that assigned an effective date of October 9, 2001, for his PTSD contained CUE because it failed to correctly apply the provisions of 38 C.F.R. § 3.156(c), concerning service records that are added to the claims file after a prior final adjudication. Essentially, he asserts that the RO erred by requiring new and material evidence to reopen his prior claim instead of reconsidering the claim based on service department records newly associated with the claims file, and that an effective date of June 16, 1971, should have been assigned. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or revised. Here, the September 2007 rating decision granted service connection for PTSD and assigned an effective date of October 9, 2001. The claims file indicates the Veteran did not file a timely notice of disagreement challenging the effective date of this award, nor did he submit new and material evidence within one year of its promulgation. Thus, the September 2007 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. 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. 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'x 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. The benefit-of-the-doubt doctrine is not for application in claims of CUE. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). As a threshold matter, the Board finds that the arguments advanced by the appellant allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). As set forth above, the version of 38 C.F.R. § 3.156(c)(1) that became effective on October 6, 2006, provided that, "Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section." These records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name. 38 C.F.R. § 3.156(c)(1)(i). However, 38 C.F.R. § 3.156(c)(2) also provided, "Paragraph (c)(1) of this section 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 failed to provide sufficient information for VA to identify and obtain the records" from the appropriate source. However, the version of 38 C.F.R. § 3.156(c) that was in effect prior to October 6, 2006 (i.e., when the Veteran filed his October 2001 request to reopen his claim), provided that, "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 comprehends 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." In its September 2007 rating decision, the RO stated that it was reopening, rather than reconsidering, his claim for service connection for PTSD, and that the award of service connection for PTSD was at least partially based on the receipt of 1969 and 1970 operational reports from the 244th Aviation Company in April 2004. These additional records confirmed the company served in Can Tho and that there were rocket and mortar attacks on his base camp. In assigning an effective date, the RO did not specifically cite to 38 C.F.R. § 3.156(c). Having carefully reviewed the record, the Board finds that the RO failed to properly apply the pre-October 2006 version of 38 C.F.R. § 3.156(c) to the extent that it assigned an effective date of October 9, 2001, in its September 2007 rating decision. Although an earlier effective date was arguably not warranted under the amended version of 38 C.F.R. § 3.156(c), which limited the application of the rule to instances where veterans had provided sufficient information to help VA identify and obtain records, the RO did not appear to consider whether the prior version of 38 C.F.R. § 3.156(c), which contained no such limiting principle, would have allowed an earlier effective date. Such an error constitutes more than a mere assertion that disagrees with how the adjudicator weighed the facts before it at the time. This is instead an error sufficient to satisfy the first requirement for finding CUE. See Bouton v. Peake, 23 Vet. App. 70, 72 (2008). Moreover, the RO's failure to consider the pre-October 2006 version of 38 C.F.R. § 3.156(c) manifestly changed the outcome of its decision. If the RO had properly applied this version of 38 C.F.R. § 3.156(c), it would have reconsidered its 1971 rating decision in light of the additional official service department records received by VA in April 2004. In other words, the RO would have assigned an effective date prior to October 9, 2001. 38 C.F.R. § 3.400(q)(2) (2001). Accordingly, the Board finds that the adjudicator did not properly apply the law in the September 2007 rating decision, that such an error was undebatable, and that this error was outcome-determinative. Consequently, the Board finds that revision of the September 2007 rating decision on the grounds of CUE is necessary. See 38 C.F.R. §§ 3.156(c), 3.400(q)(2) (2001). As a final matter, while the Board herein finds that the criteria for CUE have been met, the assignment of the appropriate effective date is referred to the VA Regional Office. Doing so ensures the appellant's right to one-review on appeal. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.