Citation Nr: 21069620 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-07 575 DATE: November 19, 2021 ORDER An effective date earlier than July 9, 2013, for the award of service connection for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), to include on the basis of clear and unmistakable error (CUE) in the December 9, 1993, rating decision that denied service connection for an acquired neuropsychiatric disorder, to include PTSD, anxiety disorder, chronic depression, and personality disorder, is denied. FINDINGS OF FACT 1. The December 1993 rating decision that denied service connection for an acquired neuropsychiatric disorder, to include PTSD, anxiety disorder, chronic depression, and personality disorder was supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. 2. The Veteran did not file any document that could be construed as an intent to file a claim for service connection for an acquired psychiatric disorder, to include PTSD, prior to July 9, 2013. CONCLUSIONS OF LAW 1. The December 1993 rating decision that denied service connection for an acquired neuropsychiatric disorder, to include PTSD, anxiety disorder, chronic depression, and personality disorder does not contain CUE. 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). 2. The criteria for an effective date earlier than July 9, 2013, for the award of service connection for PTSD and MDD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155 (in effect prior to March 24, 2015), 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1972 to May 1973. In July 2021, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). Entitlement to an earlier effective date for grant of service connection for PTSD to include on the basis of CUE in a December 1993 rating decision The Veteran asserts that she is entitled to an earlier effective date for the award of service connection for PTSD and MDD due to military sexual trauma (MST) on the basis that that there was CUE in the December 1993 rating decision which denied service connection for an acquired neuropsychiatric disorder. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Board of Veterans' Appeals (Board) notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amendments, however, are only effective for claims filed on or after March 24, 2015. As the claim for entitlement to service connection for an acquired psychiatric disorder was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a). A claim is a formal or informal communication in writing 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 VA benefits from a claimant or representative may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Here, the Veteran does not assert that she submitted any communications to VA expressing an intent to file a claim for service connection for an acquired psychiatric disability other than the claims which gave rise to a December 1993 rating decision denying service connection for an acquired psychiatric disability and the July 2013 claim which gave rise to the 2014 rating decision awarding service connection for PTSD and MDD, effective July 9, 2013, the date of the claim reopening the issue after the prior 1993 final disallowance. Rather, her claim is based on her assertion that there was CUE in the December 1993 decision which denied service connection. In order to reasonably raise a claim of CUE, the claimant must provide some degree of specificity as to what the alleged error is. If a claimant fails to adequately plead a clear and unmistakable error claim, the proper remedy is to dismiss the challenge without prejudice. Simmons v. Principi, 17 Vet. App. 104, 114 (2003). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons, 17 Vet. App. at 114. At the Veteran's Board hearing in July 2021 and in written submissions, she rests her claim on the basis that she should have been awarded service connection in 1993 because she was subsequently found to have a diagnosis of PTSD due to having been raped in service. Although information about her having been raped in service was not communicated to VA until 2013, her representative testified on her behalf that, had VA afforded her a PTSD examination in 1993 after she submitted a written statement in August 1993 alleging to have had PTSD due to having become pregnant in service and not having wanted to have a baby at that time, an examination could have revealed that she was raped in service and rendered a PTSD diagnosis related to that in-service stressor. The Veteran has also categorized the CUE in written statements submitted in support of her claim as being premised upon VA previously misdiagnosing her psychiatric condition. CUE in a prior adjudication requires: (1) that either the correct facts known at the time or constructively known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the prior decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Grover v. West, 12 Vet. App. 109, 112 (1999); Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). CUE 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensured, the error complained of cannot be CUE. Id. The claimant must offer some persuasive reasons as to why the result would have been manifestly different but for the alleged error, unless it is the kind of error that, if true, would be CUE on its face. Baldwin v. West, 13 Vet. App. 1, 5 (1999); Fugo, 6 Vet. App. at 44. 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 313-14. That is, "the alleged error must be 'undebatable,' not merely 'a disagreement as to how the facts were weighed or evaluated.'" Hillyard v. Shinseki, 24 Vet. App. 343, 349 (2011) (quoting Russell, 3 Vet. App. at 313-14). The United States Court of Appeals for Veterans Claims (Court) has reaffirmed that a "manifest change in the outcome of the adjudication means that, absent the alleged clear and unmistakable error, the benefit sought would have been granted at the outset." King v. Shinseki, 26 Vet. App. 433, 441 (2014). Failure to consider a fact of record is CUE if it is found that the evidence of record would have been so unequivocal that the outcome would undoubtedly be different if the fact would have been considered. Id. Indeed, whether it is "reasonable" to conclude that the outcome would have been different is not the standard that must be met for a motion alleging CUE to succeed. The governing law requires that the error be "undebatable" and that the commission of the alleged error must have "manifestly changed the outcome" of the decision. Id. at 441-442. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. May v. Nicholson, 19 Vet. App. 310, 313 (2005). The laws at the time of the Regional Office (RO) or Board decision being attacked should be used. See, e.g., Fournier v. Shinseki, 23 Vet. App. 480 (2010) (finding that it was not CUE to determine that a claim was not pending when the regulations pertaining to notice and denial at the time of such notice were followed). As is particularly relevant in this case, a breach of the VA's duty to assist cannot form a basis for a claim of CUE. Shockley v. West, 11 Vet. App. 208, 213 (1998). Moreover, an alleged "misdiagnosis" of a disorder cannot form the basis of a CUE claim. Henry v. Derwinski, 2 Vet. App. 88, 90 (1992). Finally, a new interpretation of a law subsequent to a RO decision cannot form the basis for a valid claim of CUE. Brewer v. West, 11 Vet. App. 228, 234 (1998); Smith (Rose) v. West, 11 Vet. App. 134, 137 (1998); & VAOPGCPREC 25-95 (Dec. 6, 1995). If an earlier RO decision contains CUE, the RO decision must be reversed or revised. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the decision constituting reversal or revision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior, reversed RO decision. 38 U.S.C. § 5109A(b); 38 C.F.R. §§ 3.105(a); 3.400(k). Thus, if there is a finding of CUE in a RO decision, the effective date can reach back to the date of the original claim. 38 C.F.R. § 3.400(k). A December 9, 1993 rating decision denied service connection for an acquired neuropsychiatric disorder, to include PTSD, anxiety disorder, chronic depression, and personality disorder. The Veteran was notified of this decision by a December 21, 1993, Notification Letter. She did not file a notice of disagreement or submit new and material evidence prior to the expiration of the one-year appeal period on December 21, 1994. Therefore, the December 9, 1993, rating decision is final. 38 U.S.C. § 4005(c) (1988); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993). The next communication received from the Veteran in relation to a desire to service connect her PTSD was not received by VA until July 9, 2013, when she submitted a claim to reopen the previously denied claim for service connection for PTSD. The PTSD claim was ultimately reopened, and service connection for PTSD and MDD was granted in a June 2014 rating decision, effective as of the date of receipt of the claim for reopening (July 9, 2013). 38 C.F.R. § 3.400. In June 2015, the Veteran filed the current claim for an earlier effective date for the award of service connection for PTSD and MDD on the basis that her claim for PTSD had been originally denied because she was not properly diagnosed with PTSD by VA at the time of the 1993 rating decision. See Veteran Statement submitted June 4, 2015. Such was denied in a July 2015 rating decision, giving rise to the current appeal. The Court has held that the effective date of the grant of service connection based on a reopened claim cannot be the date of receipt of the claim that was previously and finally denied. Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of award for service connection is not based on the date of earliest medical evidence demonstrating a causal connection, but on the date that the application on which service connection was eventually awarded was filed with VA"). As previously noted, the effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is the later, unless CUE is found in the prior final decision. 38 C.F.R. §§ 3.105, 3.400 (q)(1)(ii). As the Board has determined that the December 1993 rating decision is final, the 1993 final and binding RO determination will be accepted as correct in the absence of CUE. Where evidence establishes CUE, the prior decision will be reversed or amended. See 38 C.F.R. § 3.105(a). The Veteran's assertions of CUE in the December 1993 RO denial are all based upon allegations of VA misdiagnosing her psychiatric condition or VA breaching its duty to assist by not affording her a thorough VA PTSD examination prior to the December 1993 RO decision. As an initial matter, the Board notes that the Veteran's allegations of military sexual trauma were not raised until 2013, and she did not have a diagnosis of PTSD or of another acquired psychiatric disability shown to have been related to service in 1993. Regardless, claims of CUE are to be raised with specificity. So, the Board's decision will be based only upon the specific allegations of CUE raised by the Veteran in the 1993 RO decision. Turning to her specific allegations regarding a misdiagnosis and breach of the duty to assist by VA, unfortunately, as previously mentioned, the Court has already addressed such situations and determined that such assertions of CUE cannot form the basis of a CUE claim. Shockley, 11 Vet. App. at 213; Henry, 2 Vet. App. at 90. The Court has specifically stated that the VCAA does not apply to CUE claims because a CUE claim necessarily reviews evidence that was already of record at the time of the challenged decision. The fact that certain evidentiary development was not conducted may not form the basis for a CUE claim. Shockley, 11 Vet. App. at 213. In light of the above, the Board concludes that the December 1993 rating decision is final and that the effective date for the grant of service connection for PTSD and MDD is correct, as it is the date of the July 9, 2013 (date of receipt of the claim to reopen). At the time of the December 1993 rating decision, there was insufficient evidence of record to establish that the Veteran had a psychiatric disorder related to service, and CUE is not shown. The claim is therefore denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.