Citation Nr: 21062340 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-45 038 DATE: October 7, 2021 ORDER The Veteran's motion to revise the September 2005 Regional Office (RO) rating decision that granted service connection for posttraumatic stress disorder (PTSD), effective May 20, 2002, on the grounds of clear and unmistakable error (CUE) is granted, and an effective date of October 30, 1992, but no earlier, for the award of service connection for PTSD, is assigned. FINDING OF FACT The September 2005 rating decision that assigned an effective date of May 20, 2002 for the award of service connection for PTSD contained clear and unmistakable error which compels the conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. CONCLUSION OF LAW The criteria for assignment of an earlier effective date of October 30, 1992, for the award of service connection for PTSD on the grounds of clear and unmistakable error (CUE) in a September 2005 rating decision have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.105 (a), 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1988 to October 1992. In June 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 December 2020 Order, the Court granted a Joint Motion for Remand (Joint Motion) which vacated the June 2019 Board decision and remanded the matter for readjudication consistent with the motion. Entitlement to an effective date earlier than April 5, 1999 for the award of service connection for PTSD on the basis of CUE in a prior rating decision 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 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 must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term "claim" means a written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). 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). Regulations defining a "claim" were revised effective March 24, 2015, and apply only to claims and appeals filed after that date. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. 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 for a nervous condition was received on October 30, 1992. In his claim, the Veteran reported experiencing sleeplessness with an inability to sleep longer than three hours, nervousness, and an inability to keep still. In a March 25, 1993 rating decision, the AOJ denied the Veteran's claim for a nervous condition, noting that while the Veteran reported sleeping trouble at his military separation exam, a VA psychiatric examination found no psychiatric disorder. On March 2, 1994, the Veteran submitted a statement in which he disagreed "with the disapprovals of the decisions pertaining to my illness." He went onto state that he has not been able to get a full week of good sleep, and he sometimes experiences "severe nervous shaking." The Veteran's statement is accompanied by a second sheet with a note stating, "construe as [notice of disagreement] NOD for statements re: problems sleeping [and] nervous shaking." In April 1999, the Veteran submitted a statement requesting to reopen his service connection claim for a nervous condition. The date of this letter is the basis of the Veteran's current effective date for PTSD. In an August 2005 Board decision, service connection was granted for PTSD. A September 2005 rating decision effectuated the Board's grant of service connection, assigning a 30 percent evaluation effective from May 20, 2002. The Veteran was notified of the decision in a November 2005 correspondence from VA. In a September 2010 rating decision, an earlier effective date of April 5, 1999, was then assigned for the grant of service connection. In November 2014, the Board dismissed the Veteran's claim seeking an earlier effective date prior to April 5, 1999, for the award of service connection for PTSD, finding that the Veteran had improperly submitted a freestanding earlier effective date claim. The Veteran appealed the decision to the Court. In a February 2016 memorandum decision, the Court affirmed the Board decision and set aside the Board's finding that the Veteran had not filed a request for revision of the November 2005 rating decision. In a June 2019 decision, the Board denied the Veteran's earlier effective date claim based on CUE in a prior RO rating decision. The Veteran again appealed this adverse decision to the Court. In the December 2020 Joint Motion, the parties agreed that vacatur and remand of the Board decision was required because the Board failed to discuss what constituted a NOD at the time the Veteran submitted his March 1994 statement. The Joint Motion concluded that on remand the Board must discuss 38 C.F.R. § 20.201 (1994) and make a determination as to whether the Veteran's April 1994 statement met the requirements of a NOD at that time. The Veteran, through his attorney, contends that the appropriate effective date for the grant of service connection for PTSD should be the date VA initially received his claim in 1992. As noted above, the Veteran's initial psychiatric claim for a nervous condition was received by VA on October 30, 1992. The Veteran's attorney further contends that the September 2005 rating decision committed CUE by failing to construe the Veteran's March 1994 as a properly and timely filed NOD of the March 1993 rating decision denying his service connection claim for a nervous condition. At the time the Veteran submitted his March 1994 statement, VA regulations defined a Notice of Disagreement as follows: A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the Notice of Disagreement must make that clear. 38 C.F.R. § 20.201 (1994). The Board finds that the Veteran's March 1994 statement expressing disagreement "with the disapprovals of the decisions pertaining to my illness" constitutes a valid and timely filed NOD of the March 1993 rating decision denying service connection for a nervous condition according to VA regulations enacted at that time. The Veteran clearly expressed disagreement with the adjudicative decisions of his claims and specifically addressed his contentions that he experienced problems with sleep and "severe nervous shaking" similar to those made at the time of his October 30, 1992 initial claim seeking benefits. The terms can be reasonably construed as a disagreement and desire for appellate review, a finding which is bolstered by a notation in an adjacent document attached to the Veteran's letter stating, "construe as NOD for statements re: problems sleeping [and] nervous shaking." As the March 1993 rating decision on appeal never became final, the Board further finds that the RO committed legal error in the September 2005 rating decision in assigning a May 20, 2002, effective date for the award of service connection. The rating decision identified this as the date initially filed his service connection claim for PTSD while failing to consider whether there was a prior appeal relating to the same claim. The Board also finds that the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Here, there is no question that had the RO properly considered the March 1994 statement by the Veteran then it would have necessarily found that the statement constituted a timely and valid NOD appealing the March 1993 rating decision denying service connection for a "nervous condition". The diagnostic codes used in the rating decision to identify the type of claim being sought clearly identify it as a psychiatric claim. Had the RO applied the provisions of 38 C.F.R. § 20.201 (1994) in evaluating the Veteran's March 1994 statement, it would have necessarily determined that the Veteran's service connection claim for a nervous condition remained an unadjudicated pending appeal that never became final. Absent this legal error, the RO would have assigned an effective date of October 30, 1992, for the award of service connection of the Veteran's PTSD. In sum, the Veteran's motion to revise the September 2005 rating decision that granted service connection for posttraumatic stress disorder (PTSD), effective May 20, 2002, on the grounds of clear and unmistakable error (CUE) is granted, and an effective date of October 30, 1992, for the award of service connection for PTSD is assigned. 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.