Citation Nr: 21067572 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-25 482 DATE: November 4, 2021 ORDER Entitlement to an effective date earlier than February 12, 2016 for service connection for posttraumatic stress disorder (PTSD), including on the basis of alleged clear and unmistakable error in a March 2009 decision which denied service connection for depression, is denied. FINDINGS OF FACT 1. In March 2009, the Agency of Original Jurisdiction (AOJ) denied the Veteran's request to reopen a previously denied claim for service connection for a psychiatric disorder; the decision held that there was evidence of a post-service diagnosis of depression but, according to the AOJ, the evidence was not new and material because it failed to prove a causal connection between depression and the Veteran's military service. 2. The Veteran was informed of the denial of his claim for service connection for depression and he did not initiate a timely appeal of that decision nor did he submit new and material evidence within one year after the denial of that claim. 3. In its March 2009 decision, the AOJ erred when concluding that the evidence of a post-service diagnosis of depression was not new and material, but it is not clear that, at the time of the decision, this error would have manifestly changed the outcome because the ruling denying service connection for depression was supported by the evidence then of record. 4. After the Veteran was informed of the March 2009 decision, he did not submit a new claim for benefits until February 12, 2016, when the AOJ received a copy of his VA Form 21-0966 ("Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC"). CONCLUSION OF LAW The criteria for an effective date earlier than February 12, 2016 for service-connected compensation for posttraumatic stress disorder (PTSD), including based on an allegation that that the AOJ committed clear and unmistakable error in denying service connection for depression in March 2009, have not been met. 38 U.S.C. §§ 1110, 5107, 5110, 7105; 38 C.F.R. §§ 3.105, 3.155, 3.400, 19.52, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1988 to February 1992. His appeal concerns two decisions issued by the Agency of Original Jurisdiction (AOJ). In March 2017, the AOJ granted service-connected compensation for PTSD, rated as 70 percent disabling with an effective date of March 22, 2016. In October 2017, the AOJ denied a motion submitted by the Veteran asking for revision of a March 2009 AOJ decision which denied service connection for depression. The Veteran's motion argued that, in the March 2009 decision, the AOJ committed clear and unmistakable error (CUE). If successful, the Veteran's CUE motion would make him eligible for an earlier effective date for the psychiatric benefits granted to him in the March 2017 decision. In November 2017, the Veteran filed a notice of disagreement (NOD), initiating this appeal. Although he identified the decision he sought to appeal as the October 2017 denial of his CUE motion, he identified the issue as the denial of an earlier effective date for his PTSD benefits. The NOD arrived within the one-year deadline for appealing both the March 2017 assignment of the initial effective date for service connection PTSD and the October 2017 denial of his request to revise the March 2009 decision. See 38 U.S.C. § 7105(b)(1)(A); 38 C.F.R. § 19.52(a). The AOJ issued separate statements of the case (SOCs), in July and August 2019, continuing the denials of the CUE motion and the request for an earlier effective date, respectively. The Veteran submitted only one substantive appeal (VA Form 9). This document identifies the August 2019 SOC as the ruling being appealed. But the text of the Veteran's argument appears to include criticisms of the March 2009 AOJ decision. During a subsequent hearing, the Board also seems to have accepted testimony which included criticism of that decision. Assuming for the sake of argument that the Veteran was required to submit two separate substantive appeals, one for each SOC, and further assuming, by neglecting to do so, that he failed to perfect his appeal of the denial of his October 2017 CUE motion, the Board finds that, under these circumstances, the Board waived the failure to file a separate Form 9. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Thus, this decision will consider the possibilities that the Veteran might be eligible for an earlier effective date based on the laws and regulations generally applicable to the assignment of effective dates and based on his allegation of CUE in the March 2009 decision. The AOJ later moved forward the effective date to February 12, 2016. Because he seeks an even earlier effective date for his PTSD benefits, this decision, although favorable to the Veteran, does not resolve his appeal. In November 2020, the Veteran testified before the undersigned at the Board's Central Office. A transcript of that hearing is of record. Earlier Effective Date for Service Connection for PTSD "Unless specifically provided otherwise in this chapter . . . the effective date of an award based on . . . a claim for . . . dependency and indemnity compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The remaining subsections of the statute establish exceptions to the general rule for claims filed within one year of certain specific events. Appellate review of an AOJ rating decision is initiated by a NOD and, for decisions issued before February 19, 2019, the appeal is completed by a substantive appeal (VA Form 9) after the issuance of a SOC. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Failure to file a NOD within one year from the date of notice of the decision renders a decision final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 19.52, 20.1103. One exception to the general rule of finality is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to establish the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). As noted, the Veteran claims that there was clear and unmistakable error in the March 2009 decision. For previously denied claims of service connection, only a request for revision premised on CUE could result in the assignment of earlier effective dates. Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."). Under 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A determination that a prior determination involved CUE involves the following three-prong test: (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 clear and unmistakable error 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, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992). CUE is a 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. 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, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412 (1996). Factual Background The Veteran first applied for compensation for his depression in February 1998. The AOJ denied that claim in July 1998. It appears from this decision that, when it first considered this claim, the AOJ was unable to obtain copies of the Veteran's service treatment records. As the AOJ explained, the claim was denied in part because the Veteran failed to report for a VA examination. The Veteran did not file a NOD attempting to appeal the July 1998 decision. Indeed, he submitted no new information concerning this issue until September 2008, when the AOJ received another application seeking service-connected compensation for depression. In response to this second claim, it appears that the AOJ was able to obtain copies of the Veteran's service treatment records. These records do not reflect any treatment in service for depression or any other psychiatric disorder. But on two forms prepared by the Veteran to summarize his medical history, dated July 1988 and March 1990, he marked "yes" to indicate that he had previously experienced depression or excessive worry. According to his August 1988 enlistment examination report, his psychiatric condition was normal at that time. There is another examination report, dated March 1990, in which the examiner, without explanation, did not mark whether the Veteran's psychiatric condition was normal or abnormal. On the last in-service medical examination report, dated December 1991, the examiner did indicate that the Veteran's psychiatric condition was normal. On the same date, the Veteran completed another report of medical history form, on which he marked "no" to indicate that he was not experiencing and, indeed, had never experienced depression or excessive worry, frequent trouble sleeping, loss of memory or amnesia, or nervous trouble of any sort. As noted, the AOJ denied the Veteran's request to reopen his depression claim in March 2009. In addition to the service treatment records, the available evidence included post-service records of his treatment at a VA medical center between August and December of 2008. These records identify a diagnosis of depression and treatment using medications commonly prescribed for depression. They include a mental health note, prepared by a VA social worker in September 2008, which contains the following summary of the Veteran's account of the origins of his current psychiatric disorder: "Veteran relates problems with intrusive recollections, nightmares, not wanting to talk about the war, problems [with] sleep, irritability, anxiety, hypervigilance, mistrust, [and] depression since serving with U.S. Army in the Gulf War, where he was in artillery, but attached to a Marine unit in Iraq. Reports seeing combat; dead soldiers, Iraqi prisoners . . . Dx Impression Major Depression and PTSD." In its March 2009 decision, the AOJ acknowledged that the recent VA treatment records "reveal a diagnosis of depression; however, the evidence fails to show the claimed condition was incurred or related to your military service." The decision concluded: "the claim for service connection for depression continues to be denied because the evidence, although new, is not material because it fails to show a nexus between the current medical condition and your military service; therefore the claim has not been successfully reopened. To successfully reopen the claim, the evidence must show that you do in fact have depression related to military service." The AOJ notified the Veteran of the results of the March 2009 decision by mailing a copy of the decision and an explanatory letter to the address the Veteran identified as his residence in both his September 2008 application for benefits and in his most recent prior correspondence to VA. The Veteran did not file a NOD appealing the March 2009 decision. Nor did he submit any new documents or information to VA until February 12, 2016, when the AOJ received a completed VA Form 21-0966 ("Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC") from him. Because the AOJ received the Veteran's successful claim for service connection for PTSD within one year after receiving the intent to file form, the AOJ assigned February 12, 2016 as the effective date for his service-connected PTSD compensation. See 38 C.F.R. § 3.155(b). In March 2017, the AOJ granted service connection for PTSD based on information in an examination report prepared by a clinical psychologist in December 2016. In the report, the examiner indicated that the Veteran's mental illness satisfied the diagnostic criteria for PTSD pursuant to the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). In the examiner's opinion, the stressors causing the Veteran's PTSD symptoms related to his stressful experiences during his deployment to the 1991 Persian Gulf War. The AOJ also received a report from the Defense Personnel Records Information Retrieval System (DPRIS) indicating that, after consulting relevant unit records, a researcher confirmed the Veteran's unit passed through a minefield and that one of the vehicles struck a mine, injuring a soldier assigned to a military police unit. This report seems to corroborate one of the stressors the Veteran described in a written statement he submitted to the AOJ in March 2016. Analysis The Veteran is not entitled to an effective date earlier than February 12, 2016 for his service-connected compensation for PTSD under 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. When considering this question, the Board does not hold it against the Veteran that he referred to his psychiatric disorder as depression during his first two claims before describing it as PTSD during his more recent successful claim. The Board has treated all of three applications for service connection for mental illness as broad claims concerning any acquired psychiatric disorder which may be related to service. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The AOJ denied service connection for a psychiatric disorder in March 2009 and, although he was notified of the decision, the Veteran did not file a NOD or submit new and material evidence within one year after he learned that his claim was denied. The Veteran has not denied receiving the AOJ's March 2009 explanatory letter. Since the AOJ mailed the March 2009 decision to the Veteran's last known address, the law presumes that the Veteran was properly notified of the denial of his request to reopen his claim. See Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). Because the Veteran failed to appeal that decision and failed to submit new and material evidence, the denial of his psychiatric claim became final in March 2010. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. According to 38 U.S.C. § 5110(a), the effective date of "a claim reopened after final adjudication . . . shall not be earlier than the date of receipt of the application therefor." The Court has interpreted "the date of receipt of the application therefor" to refer to the date of the claim to reopen, rather than the date of the receipt of the previously denied claim when the denial has become final. See Nelson v. Principi, 18 Vet. App. 407, 409 (2004) (appellant may reopen a finally denied claim through the presentation of new and material evidence, but the effective date for any award based upon that reopening must be based on the date of receipt of the claim to reopen). Because the unappealed March 2009 decision became final before the Veteran submitted his intent to file form, the appropriate effective date for his psychiatric benefits under 38 U.S.C. § 5110 and 38 C.F.R. §§ 3.155(b), 3.400 is February 12, 2016 the day the AOJ received the intent to file form. Because the AOJ properly applied the statutes and regulations which generally apply to the assignment of effective dates, the Veteran's eligibility for an effective date before February 12, 2016 depends on his argument that the AOJ committed clear and unmistakable error (CUE) in its March 2009 decision. As a threshold matter, the Board finds that a statement from the Veteran, received in October 2017, satisfies the filing requirements of 38 C.F.R. § 3.105(a)(1)(vii) for revision of an AOJ decision based on CUE. As required by the regulation, the October 2017 statement is in writing, is signed by the Veteran, includes the applicable file number, identifies the date of the allegedly erroneous decision, and sets forth a specific allegation of error. The Veteran argues that it was wrong of the AOJ to deny his request to reopen the previously denied psychiatric claim. The AOJ should have reopened the claim, the argument continues, because the VA treatment records from 2008, "show that my provider repeatedly diagnosed me with depression and PTSD related to the stressors I experienced while deployed. This evidence was both new and material to my claim, yet a [compensation and pension] exam that may have offered additional supporting evidence was not conducted." As noted, the Veteran's psychiatric claim was initially denied in July 1998. When considering the September 2008 request to reopen, the AOJ was obliged to consider whether the newly submitted evidence was new and material in relation to "the evidence of record at the time of the last prior final denial of the claim sought to be reopened. . ." 38 C.F.R. § 3.156(a). At the time of the July 1998 decision, the Veteran's claims file included very little evidence of any kind. The service treatment records appeared to be missing and, according to the AOJ, the Veteran failed to appear for his first scheduled examination. Under these circumstances, the 2008 post-service VA treatment records were not cumulative or redundant of any evidence which was available at the time of the last prior final denial of the claim. The Board therefore agrees that, in its March 2009 decision, the AOJ should have decided that the post-service VA records were new and material. Alternatively, because the AOJ obtained copies of the previously missing service treatment records in March 2009, it would also have been appropriate to reconsider the previously denied claim pursuant to 38 C.F.R. § 3.156(c), which provides that, when VA receives or associates with the claims file relevant official service department records which were not associated with the claims folder when VA first decided the claim, VA will reconsider the claim without requiring the claimant to submit new and material evidence. But the Veteran's motion seeking an earlier effective date based on CUE must do more than demonstrate that the March 2009 decision erred by failing to reopen the previously denied claim. CUE is "the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made." Russell, 3 Vet. App. at 314; see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (requiring that CUE be "outcome-determinative"). When the prior final decision being collaterally attacked was a denial of a request to reopen a previously denied claim based on new and material evidence, then, to show that the outcome would have been manifestly different but for the alleged error, the claimant must show that the claim should have been reopened and that it is undebatable that the underlying benefit would have been granted. See Crippen, 9 Vet. App. at 421-23. In other words, before the Board can grant the Veteran's request for an earlier effective date based on CUE, the evidence must support a finding that it was clear and unmistakable error not to grant service connection for a psychiatric disorder in March 2009. In his October 2017 statement, the Veteran argued that, if the AOJ had reopened his claim, it would likely have also arranged a VA examination which "may have offered additional supporting evidence" to demonstrate that his psychiatric disorder was related to service. Unfortunately for the Veteran, a failure to fully develop evidence is not considered to be clear and unmistakable error. See 38 C.F.R. § 20.1403(d). "[T]he VA's breach of the duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete rather than an incorrect record." Caffrey v. Brown, 6 Vet. App. 377, 384 (1994); see also Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). During the hearing, the Veteran's representative argued that, when it issued the March 2009 decision, the AOJ had constructive notice of the post-service VA treatment records, which indicate diagnoses of depression and PTSD. While this observation may be correct, it is unnecessary. The second page of the March 2009 decision includes a list of the items of evidence considered by the AOJ, which includes "Treatment records, [from the Veteran's local VA medical center], from August 12, 2008 through December 9, 2008." Thus, the AOJ had actual notice of these records when it denied service connection for depression in March 2009. But even after considering the 2008 VA treatment notes to be part of the record available to the AOJ at the relevant time, the Board disagrees with the suggestion that it was clear and unmistakable error for the AOJ to deny service connection for a psychiatric disorder in March 2009. CUE is an "undebatable error. . ." Joyce v. Nicholson, 19 Vet. App. 36, 43 (2005) and an error over which reasonable minds could not differ. See Russell, 3 Vet. App. at 313. Having considered the evidence available to the AOJ in March 2009, the Board finds that a reasonable factfinder might have granted or denied the Veteran claim for service connection for an acquired psychiatric disorder, which means that the decision does not amount to CUE. As the Veteran's representative emphasizes, the post-service VA treatment records indicated a diagnostic impression of depression and PTSD. But there was evidence both for and against the theory that a current psychiatric disorder was related to service. The September 2008 social worker's note indicates that, according to the Veteran, he had experienced nightmares, irritability, and intrusive recollections since his deployment to the Persian Gulf region. In his October 2017 statement, the Veteran wrote that this record reflects a medical conclusion that "depression and PTSD [are] related to the stressors I experienced while deployed." But the relevant part of the September 2008 note begins with the words "The Veteran relates problems with [list of symptoms to his experience] since serving with the U.S. Army in the Gulf War. . ." (emphasis added). It is unclear whether the note's author shared the Veteran's view that his current mental illness had its onset in or was otherwise related to service. The same set of records include a nurse's note, dated August 2008, which summarizes a different theory the Veteran suggested to her i.e., that he experienced nightmares because of his exposure to unknown chemicals in the Persian Gulf and perhaps also due to his inoculations for unknown diseases. As in the case of the social worker's note, the nurse neither endorsed nor disagreed with this suggestion. It is significant that, in March 2009, the record before the AOJ did not include a clear medical opinion endorsing a connection between a psychiatric disorder and an in-service stressor. As noted, no medical professional prepared such an opinion until December 2016. Moreover, in March 2009 the AOJ did not have access to the DPRIS report confirming the details of one of the Veteran's claimed in-service stressors. At the hearing, the Veteran's representative suggested that the AOJ should have granted the psychiatric claim based on the service treatment records, noting that it was unusual that, in the March 1990 examination report, the examiner left the "psychiatric" portion of the form incomplete by neglecting to indicate whether, at the time of the examination, the Veteran's psychiatric condition was normal or abnormal. The Board agrees that this is unusual, but it is also equivocal and ambiguous i.e., it is an aspect of the record with a tendency to undermine the suggestion that there was one clear and unmistakably correct result over which reasonable minds could not differ. The other service treatment records are also equivocal. As noted, on multiple medical history report forms, the Veteran marked "yes" to indicate that he had previously experienced depression or excessive worry. These notes, together with the Veteran's statements to mental health professionals and his post-service diagnoses of depression and PTSD might well have persuaded a reasonable fact finder to grant service connection for a psychiatric disorder. But the December 1991 medical history report, which is the only such report completed after his participation in the 1991 Persian Gulf War, indicates that the Veteran was not experiencing depression or excessive worry and, indeed, that he had never experienced depression or excessive worry. The contemporaneous December 1991 medical examination report reflects that, at the time, his psychiatric condition was normal. This medical history form contradicts the Veteran's earlier statements on similar forms. But a reasonable fact finder might well have denied the Veteran's psychiatric claim in March 2009, reasoning that, although he may have experienced temporary feelings of sadness or depression before or during service, these episodes were unrelated to his Gulf War stressors and, by the time of the December 1991 examination, the Veteran had so successfully overcome those feelings that, when he prepared the medical history form, he had completely forgotten about them. In summary, the Board finds that the result of the March 2009 AOJ decision i.e., to deny service connection for an acquired psychiatric disorder was at least debatable, based on the available evidence. Consistent with this finding, the Board concludes that, in March 2009, the AOJ did not commit CUE and that the Veteran is not eligible for an effective date earlier than February 12, 2016 for his PTSD benefit on that basis. For these reasons, his request for an earlier effective date for service connection for PTSD is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.