Citation Nr: 21075179 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-44 179 DATE: December 17, 2021 ORDER An earlier effective date of August 28, 1997, but not prior, is granted for the award of service connection for posttraumatic stress disorder (PTSD). FINDINGS OF FACT 1. The Veteran's initial claim of entitlement to service connection for PTSD was received by VA on August 28, 1997. 2. The September 1998 rating decision that initially considered and denied his claim did not correctly apply statutory or regulatory provisions extant at that time and contained an undebatable or egregious error in application of the law that was outcome determinative. CONCLUSION OF LAW Since there was clear and unmistakable error (CUE) in the initial September 1998 rating decision, the criteria are met for an earlier effective date of August 28, 1997, but not prior to that, for the grant of service connection for PTSD. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1970 to October 1973. This appeal to the Board of Veterans' Appeals (Board) is from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a hearing in November 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. An earlier effective date of August 28, 1997, is granted for the award of service connection for PTSD The Veteran asserts that he is entitled to an effective date earlier than June 4, 2013 for the grant of service connection for his PTSD because there was CUE in a prior RO decision considering and denying this claim. Generally, a decision of the RO that is not timely appealed becomes final and binding in the absence of CUE. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. If the evidence establishes CUE, the prior decision will be reversed or revised; a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(a), 3.105(a). To establish CUE in a prior decision, the following requirements must be met: (1) either the facts known at the time of the decision being collaterally attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14(1992) (en banc)). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as 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 (1993). As a threshold matter, the Board finds the argument advanced by the Veteran alleges CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claim. On his August 2017 VA Form 9, Substantive Appeal to the Board, the Veteran stated that he believes the September 1998 denial of his claim involved CUE because the evidence, as it existed even at the time that earlier decision, supported his contention that the violence he had witnessed while deployed during the Vietnam era was the cause of his PTSD, i.e., it corroborated his in-service stressor. A review of the Veteran's service personnel records (SPRs) shows that he received a recommendation to be awarded the Distinguished Flying Cross. The accompanying citation explains that he had "distinguished himself by extraordinary achievement while participating in aerial flight as an AC-130 Gunship Aerial Gunner over Cambodia on 14 March 1973." The citation also details that he participated as a gunner during a night fire support mission "over a heavily besieged friendly ground position" and that he acted "[i]n the face of tracerless antiaircraft artillery fire" and was "responsible for inflicting heavy casualties upon the hostile forces." The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was weapons mechanic, and he testified during his November 2021 hearing before this Board that he also acted as an airplane gunner which, as mentioned, is corroborated by his SPRs. The September 1998 rating decision denying the Veteran's earlier claim for service connection for PTSD was because there was no verification of his claimed in-service stressor. That decision conceded he a diagnosis of PTSD, even then, but, absent a confirmed stressor (or exception where there did not have to be objective or independent corroboration of the alleged stressor), the conclusion was that service connection could not be granted. See 38 C.F.R. § 3.304(f). In denying the claim, the September 1998 rating decision directly quoted statements in a July 1998 VA PTSD examination report, which had recorded the Veteran's lay recitation of his history, noting that "[i]n the summer of 1973, and while flying over Laos, the formation was caught in heavy anti-aircraft fire. He was not sure as to whether or not his plane was hit, or the rough going was the result of the maneuvering of the pilot to avoid flack. Nevertheless, the Veteran felt at that time that they were about to be killed." Importantly, that September 1998 rating decision does not indicate the Veteran's SPRs were considered in adjudicating his claim. Rather, that rating decision indicates that only VA treatment records from May 1997 onward and the July 1998 VA examination report were considered. As of May 19, 1993, so in effect at the time of the September 1998 rating decision, section (f) was added to 38 C.F.R. § 3.304. This section read as follows: (f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in[-]service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in[-]service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in[-]service stressor (emphasis added). 38 C.F.R.§ 3.304(f) (eff. May 19, 1993). Thus, as the Veteran was claiming entitlement to service connection for PTSD based on his combat experience during service, in Vietnam, and his SPRs clearly and unmistakably showed that he had engaged in combat certainly to the extent that it was recommended he receive the Distinguished Flying Cross, and the record contained an accompanying citation detailing his combat experience, the Board finds that it was CUE for the RO to have denied his claim for PTSD in the earlier September 1998 rating decision. The fact that the RO denied the claim, despite this compelling evidence contrarily supporting the claim and verifying the Veteran's claimed stressor in accordance with the VA regulation in effect at that time, was CUE in that September 1998 rating decision. Therefore, its "finality" (res judicata) is vitiated, in turn providing grounds for assignment of an earlier effective date of August 28, 1997 because that was when the Veteran first filed his claim for this condition, predicated on his verified 1973 in-service stressor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.