Citation Nr: 21072122 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-28 946 DATE: December 2, 2021 ORDER Entitlement to an earlier effective date prior to January 13, 2017, for the award of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder, to include as a result of clear and unmistakable error (CUE) in an August 2015 rating decision, is denied. FINDINGS OF FACT 1. The Veteran's claim seeking entitlement to service connection for chronic depressive disorder was initially denied in an August 2015 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. 2. In a June 2017 rating decision, the Veteran was granted service connection for PTSD with major depressive disorder; the regional office (RO) assigned the effective date for the Veteran's disability as January 13, 2017, the date the application to reopen was received. 3. The August 2015 rating decision that denied service connection for chronic depressive disorder was reasonably supported by evidence then of record, and the record does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions that existed 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 earlier effective date prior to January 13, 2017, for the award of service connection for PTSD with major depressive disorder, to include as a result of CUE in an August 2015 rating decision, have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.105, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 2006 to November 2008, and again from May 2009 to December 2012. He also served a period of active duty for training (ACDUTRA) from January 2013 to May 2013. The Veteran had initially requested to appear before a Veterans Law Judge at a Board hearing. Most recently, he was scheduled for a hearing in September 2021 that was cancelled. The notes associated with the hearing request indicate that the Veteran no longer desired to appear at a Board hearing. By way of history, the claim on appeal is "entitlement to an earlier effective date for service-connected PTSD with major depressive disorder recurrent based on a clear and unmistakable error (CUE)" as captioned in the August 2019 statement of the case (SOC). However, the May 2018 rating decision from which the Veteran filed his notice of disagreement (NOD) does not address the earlier effective date issue. A SOC may not address such an issue in the first instance. 38 C.F.R. § 19.29, 19.31. However, in this instance, as a remand and referral to correct the jurisdictional issue would only serve to delay the adjudication in this case and the Veteran is clearly on notice of the issue on appeal, the Board finds that it has jurisdiction to address the issue as captioned in the August 2019 SOC. Entitlement to an earlier effective date prior to January 13, 2017, for the award of service connection for PTSD with major depressive disorder, to include as a result of CUE in an August 2015 rating decision The Veteran seeks an earlier effective date for the award of service connection for his PTSD with major depressive disorder. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date 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 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 or electronic 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 existence 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 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 chronic depressive disorder was received in August 2014. In an August 2015 rating decision, the RO denied the claim, concluding that "no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service." The Veteran did not appeal that decision or submit new and material evidence within one year, and the rating decision became final. On January 13, 2017, the Veteran submitted a VA Form 21-526EZ, requesting reconsideration of the previously denied service connection claim, which he recharacterized as PTSD. In a June 2017 rating decision, the Veteran was granted service connection for PTSD with major depressive disorder. He was assigned an effective date from January 13, 2017, the date of the petition to reopen his claim. The Board finds the Veteran is already in receipt of the earliest possible effective date for this disability as the effective date assigned is the date the Veteran's petition to reopen his service connection claim for a psychiatric disability was received. A thorough review of the claims file shows no written communication by either the Veteran or his representative evidencing any intent to seek compensation disability benefits for his now service-connected PTSD with major depressive disorder between January 13, 2017 and the August 2015 rating decision. While the Veteran submitted a medical opinion related to his PTSD claim, it was received in October 2016. This is both outside of the one-year period to file a NOD and not connected to a formal or informal claim for benefits. 38 U.S.C. § 3.156. The Veteran contends that an award of an earlier effective date is warranted under 38 C.F.R. § 3.156(c). If relevant, newly discovered service treatment records (STRs) were added to the file after the last regional office decision, the Veteran's claim will not be considered final and the claim will be reconsidered. 38 U.S.C. § 3.156 (c). In support of his assertion, the Veteran notes that December 2012 and May 2013 STRs are the basis for the positive opinion by the June 2017 VA examiner. See VBMS, document labeled Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief), receipt date March 11, 2021. However, these STRs were already of record at the time of the August 2015 rating decision. Therefore, the provisions of 38 C.F.R. § 3.156(c) do not apply. To the extent that the Veteran asserts that there are extant STRs that could have been relevant to the Veteran's claim, the provisions of 38 C.F.R. § 3.156(c) only address records that were later associated with the claims file, not missing records. Given that the Veteran's claim fails under the standard earlier effective date provisions, the only other possible basis for an effective date earlier than that assigned is to show clear and unmistakable error (CUE) in a prior final rating decision. See 38 C.F.R. § 3.105 (a). For the reasons that follow, the Board concludes that Veteran's CUE claim cannot prevail. The August 2015 rating decision (or the May 2018 rating decision) were not clearly and unmistakably erroneous. The Veteran argues in his September 2019 VA Form 9 that because he was subsequently awarded service connection in June 2017 based on the same in-service incident that he attributes to the onset of his psychiatric disability, the failure of the RO to award service connection in the August 2015 rating decision amounted to CUE. The Veteran's representative appears to argue in a March 2021 memorandum that VA did not have all the available service treatment records before it when denying his claim, and the failure to obtain and consider these records amounted to clear error. The Veteran's representative also noted that the Veteran's medication list in August 2015 included Clonazepam, which is used to treat anxiety, among other medical conditions. The Board finds that the correct facts, as they were known at the time, were before the RO at the time of the August 2015 rating decision. The evidence included the Veteran's service medical records, including a December 2012 Report of Medical Examination which documented an abnormal psychiatric evaluation. A notation in the examination report stated the Veteran was depressed due to his reduced activity levels stemming from a recent automobile accident. Also of record at the time of the August 2015 rating decision was a May 2013 Report of Medical History in which the Veteran denied a history of experiencing nervous trouble of any sort, including anxiety or panic attacks. He further denied having a history of depression or excessive worry, denied ever being evaluated or treated for a mental condition, and denied any past suicide attempts. A May 2013 Report of Medical Examination shows that the Veteran's psychiatric evaluation resulted in normal clinical findings. Following a review of the evidence of record, the Board finds that at the time of the August 2015 rating decision denying the Veteran's service connection claim, the claims file did not contain evidence that the Veteran's now service-connected PTSD with major depressive disorder was formally diagnosed. There is also no evidence that there were any missing or unavailable service treatment records at the time. The August 2015 rating decision was properly based on the evidence of record at the time of that decision. The evidence of record is against a finding that there was CUE in the August 2015 rating decision. The evidence of record does not support a finding that the correct facts, as they were known at the time of the August 2015 rating decision, were not before the adjudicator, or that regulatory provisions then in existence at the time were incorrectly applied. 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 August 2015 rating decision 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). To the extent that the Veteran asserts that the RO should have developed his case with a VA examination in connection with his original claim, such an error, if there is one, is not a basis for 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)). In sum, there is no showing that the RO committed CUE in the August 2015 rating decision. As CUE has not been demonstrated, the claim for an earlier effective date based on CUE must be denied. I. M. Hitchcock Acting 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.