Citation Nr: 21071369 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-35 408 DATE: November 30, 2021 ORDER Whether the effective date assigned for service connection for posttraumatic stress disorder (PTSD) in the rating decision dated December 8, 2008, was clearly and unmistakably erroneous (CUE), on the basis of substitution is denied. Entitlement to an effective date earlier than February 10, 2009 for basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35, on the basis of substitution is denied. FINDINGS OF FACT 1. The evidence has not established, without debate, that the correct facts, as then known, were not before the Regional Office (RO) at the time of the December 2008 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time. 2. The Veteran was denied service connection for PTSD in a September 2004 rating decision because no new and material evidence had been received. The rating decision subsequently became final. 3. A claim to reopen the issue of service connection for PTSD was received on April 3, 2008, which was subsequently granted in a December 2008 rating decision. 4. No claim, formal or informal, to reopen service connection for PTSD was received during the period from September 2004 to April 3, 2008. 5. The Veteran did not have a permanent and total service-connected disability rating prior to February 10, 2009, the date he was awarded a total 100 percent disability rating for PTSD. CONCLUSIONS OF LAW 1. The December 2008 rating decision that assigned an effective date of April 3, 2008 was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 2. The criteria for an effective date earlier than February 10, 2009 for basic eligibility to DEA under 38 U.S.C. chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 3510, 5107, 5110; 38 C.F.R. §§ 3.400, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1971. He died in April 2016. The appellant is his surviving spouse. In May 2016, the Board of Veterans' Appeals (Board) dismissed these issues as the Veteran had died. The appellant was informed that she could request to be substituted for purposes of processing the Veteran's claim to completion. In June 2016, the appellant submitted a request for substitution, and in January 2020 a letter was sent to the appellant notifying her that, as the Veteran's surviving spouse, she had been recognized as a substitute claimant. See 38 U.S.C. § 5121A. Effective Date In general, VA regulations provide that the effective date for the grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later, unless otherwise provided. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Also, the effective date shall be the date of receipt of the appellant's claim to reopen or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). 1. Whether the effective date assigned for service connection for PTSD in the rating decision dated December 8, 2008, was clearly and unmistakably erroneous A December 2008 rating decision granted the Veteran's claim for service connection for PTSD effective April 3, 2008, the date of the most recent claim to reopen. Prior the Veteran's death, he disagreed with the effective date assigned and indicated that the December 2008 rating decision was CUE. At the time of the December 2008 rating decision, service connection for PTSD requires medical evidence diagnosing the condition per criteria in the Diagnostic and Statistical Manual (DSM) of Mental Disorders; credible supporting evidence that the claimed in-service traumatic stressor occurred; and a link or nexus, established by medical evidence, between the current symptoms and an in-service stressor. Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. 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. 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 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. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Historically, the Department of Veterans Affairs (VA) Regional Office (RO) received the Veteran's original claim for service connection for PTSD on October 25, 1990. An April 1991 rating decision denied his claim as there was no evidence that he had been clinically diagnosed with PTSD. The Veteran requested reconsideration of the April 1991 decision. A January 1993 rating decision confirmed and continued the prior denial as there was no current, verified diagnosis of PTSD. The Veteran filed a Notice of Disagreement in February 1993. VA issued a statement of the case in March 1993. The Veteran submitted a substantive appeal to the Board. In May 1995, the Board denied service connection for PTSD, concluding that the record did not support that the Veteran had PTSD which was incurred or aggravated in service. He requested reconsideration of this decision, and the motion was denied in November 1995. The May 1995 Board decision became final. The Veteran submitted a claim to reopen in June 2004. A September 2004 rating decision continued the denial because it was determined that there was no new and material evidence to show a confirmed diagnosis linked to an in-service stressor. The Veteran did not appeal this decision and it became final a year after the date of notification in September 2004. VA received another request to reopen the claim on April 3, 2008. The RO determined that evidence received in conjunction with this claim was sufficient to confirm a combat stressor and a diagnosis of PTSD linked to service, considering military personnel records and the December 2008 VA examination. The VA examination documented PTSD that met DSM-IV criteria, with a medical opinion that this condition was most likely caused by service. As such the RO granted service connection for PTSD in a December 2008 rating decision, effective April 3, 2008, the date of receipt of the Veteran's re-opened claim. Relevant to the claim of CUE, the Board observes the decision to assign an effective date of April 3, 2008 for the Veteran's PTSD claim was not a CUE. The Board notes there is no confirmed diagnosis linked to an in-service stressor prior to the date of receipt of the Veteran's claim on April 3, 2008. Indeed, December 1992 VA examination worksheet noted a diagnosis of severe PTSD; however, a subsequent final December 1992 examination report documented a history of PTSD, currently inactive, probably in at least part controlled by current psychotropic medications. The examination report also reflected mental health diagnoses of history of schizophrenia, opiate dependence, and alcohol dependence. The Veteran submitted new and material evidence sufficient to grant this issue in conjunction with his April 2008 claim. As noted above, when new and material evidence is received after a final disallowance of the benefit in question, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. The Board observes the provisions that allow for an earlier effective date based on receipt of additional service department records. The additional service records document the Veteran's receipt of the Combat Infantryman Badge sufficient to concede a stressor. The Board observes; however, this evidence alone is not sufficient to support a grant of PTSD. The previous medical evidence of record documents numerous mental health issues with reference to PTSD, but there was no confirmed diagnosis of PTSD per criteria in the DSM of Mental Disorders with a medical link or nexus to service, prior to the VA examination on December 1, 2008. In sum, after the final September 2004 rating decision, the Veteran submitted his claim to reopen for service connection for PTSD on April 3, 2008. The December 2008 VA examination report documented a confirmed PTSD diagnosis as per the DSM and that such is due to the Veteran's military service. The Board finds that the properly effective date assigned is April 3, 2008. As such, the December 2008 rating decision does not contain CUE as to the appropriate effective date for the grant of service connection for PTSD, and the appellant's claim is denied. 2. Entitlement to an effective date earlier than February 10, 2009 for Basic eligibility to DEA under 38 U.S.C. Chapter 35 For the purposes of DEA benefits, basic eligibility exists if a veteran was discharged from service under conditions other than dishonorable, and if s/he has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021(p). There are other avenues through which basic eligibility may be granted; however, they involve factors not applicable here, e.g., the death of a veteran or if a veteran is currently on active duty. Id. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). Diseases and injuries of long-standing that are actually totally incapacitating will be regarded as permanently and totally disabling on the probability that permanent improvement under treatment is remote. Id. The age of the disabled person may be considered in determining permanence. Id. Once permanence is established, a veteran need not undergo further VA examination in order to retain her rating for the permanent disability. See 38 C.F.R. § 3.327(b)(2)(iii). The Board finds that prior to his death the Veteran did not have a permanent and total service-connected disability prior to February 10, 2009, the date he was awarded a total 100 disability rating for his PTSD. Prior to February 9, 2009, the Veteran's compensable service-connected disability was 10 percent for PTSD. See December 2015 rating decision codesheet. Overall, the record shows that prior to this date, none of the Veteran's service-connected disabilities were determined to be total and permanent in nature or 100 percent disabling. Since eligibility for DEA benefits is predicated on a finding of permanent and total disability, the effective date of such eligibility cannot precede the date permanent and total disability was awarded, which was February 10, 2009, in this case. Accordingly, entitlement to an effective date earlier than February 10, 2009 for the establishment of basic eligibility for DEA benefits is denied as a matter of law. Where the law, rather than the facts, is dispositive, the benefit-of-the-doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.