Citation Nr: 21062315 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 13-21 556A DATE: October 7, 2021 ORDER Entitlement to an effective date prior to July 23, 2010, for the award of service connection for posttraumatic stress disorder (PTSD), to include as a result of clear and unmistakable error (CUE) in a December 2001 rating decision, is denied. FINDINGS OF FACT 1. The Veteran's claim seeking entitlement to service connection for PTSD was initially denied in a December 2001 rating decision. The Veteran perfected an appeal of this decision but subsequently withdrew his appeal. 2. In a September 2011 rating decision, service connection was granted for PTSD, effective July 23, 2010, the date an application to reopen was received. 3. There is no evidence in the record that the Veteran filed a formal claim prior to July 23, 2010, and since the December 2001 rating decision denying his claim of entitlement to service connection for PTSD. 4. The December 2001 rating decision that denied service connection for PTSD was reasonably supported by evidence then of record, and the record does not demonstrate that the Agency of Original Jurisdiction (AOJ) incorrectly applied the statutory or regulatory provisions extant at that time, or that the correct facts, as known at that time, were not considered. CONCLUSION OF LAW The criteria for assignment of an effective date prior to July 23, 2010, for the award of service connection for PTSD, to include as a result of clear and unmistakable error (CUE) in a December 2001 rating decision, have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1969 to August 1972, to include service in the Republic of Vietnam from November 1969 to October 1970. In September 2019, the Board denied the above claim. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 memorandum decision, the Court vacated the September 2019 Board decision and remanded the matter for readjudication consistent with the decision. Entitlement to an earlier effective date prior to July 23, 2010, for the award of service connection for PTSD The Veteran seeks an earlier effective date for the award of service connection for PTSD. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the Veteran's claim is not warranted. Generally, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2)(i). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 79 Fed. Reg. 57660 (Sept. 25, 2014). Prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). Previous determinations on which an action was predicated, including decisions regarding increased evaluations, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 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. 38 C.F.R. § 3.105 (a). CUE is a very specific and rare kind of error; it is the 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. See, e.g., Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions then in extant at the time were incorrectly applied; and (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); see, e.g., Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14. A failure in the duty to assist does not establish CUE. A purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" to vitiate the finality of a prior, final decision. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Facts and Analysis The Veteran's initial claim seeking service connection was received in August 2001. In a December 2001 rating decision, the AOJ denied the claim because the Veteran did not submit evidence showing he was diagnosed with PTSD. The Veteran subsequently appealed the rating decision and submitted a January 2002 Vet Center psychological evaluation confirming he was diagnosed with PTSD. The Veteran reported both to the January 2002 medical examiner and more recently to the Board that, while deployed to Vietnam, he served as a 71P20 flight operations coordinator and, in this capacity, was responsible for coordinating flight schedules and flying on missions when a ship was short-handed. He reported to the 2002 examiner that he remembered when fellow soldiers were killed or wounded by rocket or mortar attacks and when soldiers were killed or wounded while on flight missions but provided no specifics beyond these statements. An April 2002 Statement of the Case (SOC) conceded the Veteran had established a then-current PTSD diagnosis. However, the SOC also determined the Veteran still did not have a verifiable in-service stressor to support relating the diagnosis to his military service. The Veteran perfected an appeal of this decision but subsequently withdrew his appeal. The December 2001 rating decision therefore became final and binding when the Veteran withdrew his appeal. 38 C.F.R. § 20.1103. On July 23, 2010, VA received a statement from the Veteran indicating his desire to reopen his previously denied service connection claim for PTSD. Service connection was subsequently granted in a September 2011 rating decision. The Board finds the Veteran is already in receipt of the earliest possible effective date for PTSD as the effective date assigned is the date the Veteran's petition to reopen his service connection claim for PTSD was received. A thorough review of the record shows no claim submitted on the required form by either the Veteran or his representative evidencing any intent to seek compensation disability benefits for his now service-connected PTSD prior to July 23, 2010, and since the date of the December 2001 rating decision and April 2002 SOC. As such, the claim must be denied. The only other possible basis for an effective date earlier than that assigned is to show CUE in a prior final rating decision. See 38 C.F.R. § 3.105 (a). In its January 2021 memorandum decision, the Court found that the Board provided an inadequate statement of reasons or bases in its September 2019 decision for determining that the December 2001 rating decision and April 2002 SOC did not contain CUE. The Court stated that while the Board acknowledged the Veteran's lay reports, "it did so only in the context of assessing whether his report of in-service stressful events was verifiable at the time of the April 2002 SOC." However, the Court concluded that "the Board did not address how the Veteran's lay statements recounting his experiences in Vietnam and treatment records referencing his combat history, present in the 2002 evidence of record, affected its determination whether the correct facts in the record were before the RO or whether section 1154(b) and § 3.304 were correctly applied." For his part, the Veteran's attorney argues that the "Board misinterpreted and misapplied the law governing the determination of combat status to determine that the RO reviewed the correct facts and applied the correct law." See July 2021 appellate brief. Generally, establishing service connection for PTSD requires (1) a current medical diagnosis of the condition in accordance with 38 C.F.R. § 4.126 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal relationship ("nexus") between the current diagnosis and the specifically claimed stressor in service. See 38 C.F.R. § 3.304 (f); Anglin v. West, 11 Vet. App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357 (1998), Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Suozzi v. Brown, 10 Vet. App. 307 (1997). The outcome of this appeal essentially turns on the question of whether the RO's failure to apply the combat presumption in the Veteran's case amounted to CUE. For the reasons that follow, the Board concludes that the CUE claim cannot prevail. The December 2001 rating decision and subsequent April 2002 SOC now being collaterally attacked on the basis of CUE were issued before the liberalizing provisions of 38 C.F.R. § 3.304 (f)(3) concerning fear of hostile military or terrorist activity were promulgated. This liberalized evidentiary standard for establishing the required in-service stressor formed the basis of the grant of service connection of the Veteran's claim in the September 2011 rating decision. The RO found at that time that the Veteran's diagnosed PTSD was related to his fear of hostile military or terrorist activity, and the claimed stressor was consistent with the places, types and circumstances of his service. At the time of the December 2001 rating decision and April 2002 SOC, the evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD depended on whether the 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). If it was determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors were related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence was necessary, provided that the testimony was found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d), (f) (2001); Doran v. Brown, 6 Vet. App. 283, 289 (1994). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154 (b), and the implementing VA regulation 38 C.F.R. § 3.304 (d) and (f), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case by case basis. See VAOPGCPREC 12-99 (October 18, 1999). If VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's testimony or statements. 38 C.F.R. § 3.304 (f) (2001); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). The Board finds that the correct facts, as they were known at the time, were before the RO at the time of the December 2001 rating decision and subsequent April 2002 SOC. The evidence before the RO, which was specifically referenced in an evidence list in the April 2002 SOC, included the Veteran's lay statements reporting his in-service stressor, which included participation in the retrieval of helicopters and remembering instances when fellow soldiers were killed or wounded while on flight missions. Also of record were the Veteran's service personnel records, which included multiple citations addressing the various awards the Veteran received in service, which included the National Defense Service Medal, the Vietnam Campaign Service Medal, two Army Commendation medals, three Bronze Service Stars and the Air medal. Finally, medical records at the time of the December 2001 rating decision and April 2002 SOC identifying the Veteran as a "combat veteran", as well as the January 2002 Vet Center psychological evaluation, were available at the time of the prior decisions. The Veteran's attorney generally argued in his July 2021 brief that "the RO did not have all the correct facts before it because the facts for determining combat status are not limited to awards and verifiable information." However, in light of the evidence list present in the April 2002 SOC, neither the Veteran nor his attorney have explained what facts they believed were missing from the record or otherwise not before the RO at the time of the prior decisions. The Board finds following a review of the evidence that neither the Veteran's statements at that time, nor his service records, nor the medical evidence available to the RO established that the Veteran had participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality sufficient to warrant application of the combat presumption at the time of the December 2001 rating decision and April 2002 SOC. With respect to the Veteran's statements, he endorsed having "combat experience" on a March 2000 "biopsychosocial history" form. Further, in a May 2001 statement the Veteran reported being involved in the recovery of downed helicopters that were covered in blood. He further stated that he served for one month in the field when he first arrived "in country," presumably to Vietnam. In an August 2001 statement, the Veteran attributed his psychiatric condition to hepatitis C. And in a September 2001 statement, the Veteran's mother wrote that "Vietnam service has totally ruined my son." However, these statements fail to show that the Veteran had participated in any events constituting an actual fight while serving in Vietnam. At his January 2002 Vet Center psychological evaluation, the Veteran reported remembering instances where fellow soldiers were killed or wounded by rocket or mortar attacks and when soldiers were killed or wounded while on flight missions. He also stated that he believed the only time he may have been exposed to hepatitis C was during Vietnam when others were wounded, and he was exposed to blood. Finally, the Veteran reported having flown on missions when a ship was short-handed due to casualties or leave. Again, the examination report fails to record any statements from the Veteran indicating that he "engaged in combat with the enemy" as the term is used in 38 U.S.C. § 1154 (b). Similarly, while multiple VA treatment records refer to the Veteran as a "combat veteran", the records fail to identify any information that would suggest the Veteran had participated in any events sufficient to warrant a finding that he "engaged in combat with the enemy." As noted in the September 2019 Board decision, service personnel records show that the Veteran served as a 71P20 flight operations coordinator while in Vietnam. These records also show that he served in Vietnam from November 1969 to October 1970. His DD Form 214 reflects that he was awarded the National Defense Service Medal, the Vietnam Campaign Service Medal, two Army Commendation medals, three Bronze Service Stars and Air medal. While certainly commendable in their own right, none of those recognitions establish on their face that the Veteran engaged in combat. The Veteran, though his counsel, notes that he was awarded his Air Medal for "meritorious achievement while participating in sustained aerial flight, in support of combat ground forces." He was awarded the Bronze Star medal for "outstandingly meritorious service in connection with military operations against a hostile force." However, the very language in the Citation accompanying the Award of the Bronze Star Medal and Air Medal underscores that the Veteran did not receive his awards for any form of combat meeting the criteria described above. The Veteran's Bronze Star Medal and Air Medal, according to the very language of the Citation and the recommendation, recognizes his meritorious service in support of combat ground forces and in connection with military operations. Nowhere do these Citations recognize that he, himself, "engaged in combat with the enemy." See 38 U.S.C. § 1154 (b). The precedent VA Office of General Counsel Opinion (VAOPGCPREC 12-99) distinguishes service in a combat zone or area from actual engagement in combat against an enemy force or instrumentality. The Board further finds following a painstaking review of the evidence of record, as well as the regulations and caselaw in effect at the time of the December 2001 rating decision and April 2002 SOC, that the statutory or regulatory provisions extant at the time were correctly applied. The evidence of record is against a finding that there was CUE in the prior RO decisions. As the Veteran's attorney himself acknowledged in his July 2021 brief, "[a]t the time of the RO's 2001-02 adjudication, the record contained numerous pieces of evidence suggesting [the Veteran] engaged in combat with the enemy." However, a suggestion of engagement with the enemy is insufficient to trigger the combat presumption. There was no error in the RO's decision not to apply the combat presumption to the Veteran's case because the evidence then of record failed to establish the Veteran participated in events that amounted to engagement in combat with the enemy. Absent the relaxed evidentiary requirements inherent in the combat presumption, the Veteran's lay statements alone were also insufficient to establish the occurrence of in-service stressors. See, e.g., Gaines, 11 Vet. App. at 357. The Veteran's service medical records do not document any treatment related to any events that would be consistent with his reported in-service stressors. Further, the personnel records in the Veteran's claims folder particularly the Veteran's various citations do not corroborate any of the Veteran's nonspecific statements concerning his in-service activities in Vietnam. Neither the narratives in the citations nor the Veteran's statements at the time of the previous RO decisions provide any detailed information on the dates, times, locations or circumstances associated with the Veteran's claimed in-service stressor events. A claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. The evidence does not support a finding that there was an undebatable error in the prior RO decisions which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). In sum, there is no showing that the AOJ committed CUE in the December 2001 rating decision and April 2002 SOC. As CUE has not been demonstrated, the claim for an earlier effective date based on CUE must be denied. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.