Citation Nr: 21011914 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-35 202 DATE: March 3, 2021 ORDER Effective date prior to August 31, 2010 for service connection of PTSD is granted. FINDING OF FACT 1. In April 2005 the Agency of Original Jurisdiction denied the Veteran’s claim for service connection for PTSD. The Veteran appealed and was denied again in January 2007. 2. In January 2009, the AOJ denied the Veteran’s claim for service connection for PTSD. 3. In May 2011 the Veteran’s claim for PTSD was granted with an evaluation of 30 percent effective August 31, 2010, the date the Veteran’s claim to reopen the claim for service connection for PTSD was received. 4. The correct facts as they were known at the time of the April 2005 rating decision were not applied, resulting in an undebatable and outcome determinative error. CONCLUSION OF LAW 1. The April 2005 Rating Decision contains Clear and Unmistakable Error (CUE). 38 U.S.C. § 5109A, 7105 (2012); 38 C.F.R. § 3.105(a) (2019). 2. The criteria for an effective date of April 2005, but no earlier, for grant of service connection for PTSD, have been met. 38 U.S.C. § 5110 (2012); 38C.F.R. § 3.105, 3.160, 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from December 1968 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran filed a timely notice of disagreement (NOD) in May 2012. In July 2014 the AOJ issued a Statement of the Case (SOC). The Veteran then filed a VA Form 9 to appeal the claim to the Board on September 2014 and requested a Board Hearing. In April 2018, the Veteran was afforded a hearing before the undersigned Veterans’ Law Judge (VLJ). The Veteran reasonably raised the issue of Clear and Unmistakable Error during the hearing. The Board determined that the issue of entitlement to an effective date prior to August 31, 2010, for the grant of service connection for post-traumatic stress disorder (PTSD) had been restated accordingly to reflect consideration of CUE. The claim was therefore remanded in June 2018. The AOJ issued a Supplemental Statement of the Case (SSOC) in October 2020. This matter is now properly before the Board. The Veteran contends that there is CUE in the April 2005 rating decision that denied his claim for service connection for PTSD. Preliminarily, the Board finds that the Veteran has pled a case for CUE with particularity. Generally, a rating decision becomes final if an appellant does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.200, 20.302. Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.104(b), 3.105(a). In order to find CUE in a prior adjudication, the following three-prong test must be met: (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 manifestly have changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). Clear and unmistakable error 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. 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 (1993). The Veteran’s claim for PTSD was denied in April 2005. The Veteran filed a NOD in February 2006 and the AOJ issued an SSOC in January 2007 denying Veteran’s claim for PTSD. The April 2005 rating decision then became final. In July 2008 the Veteran filed a statement in support of claim indicating that he was seeking treatment for PTSD and attending a PTSD program at the VA medical center in Nashville, TN. In a January 2009 rating decision, the claim for PTSD was again denied. The AOJ indicated that there was no evidence or awards in the record to support the Veteran’s claim. In October 2010, the Veteran submitted a statement in support of PTSD indicating that he was in the Korean DMZ from 1969 to 1979. In May 2011, the Veteran’s claim for PTSD was granted with an evaluation of 30 percent effective August 31, 2010. The Board finds that there was CUE in the previous August 2005 rating decision. The Board finds that it is the kind of error, of fact, that compels the conclusion, to which reasonable minds could not differ and that the result would have been manifestly different but for the AOJ’s error. In this case, the Veteran filed his initial claim for service connection for PTSD in August 2004. The Veteran’s claim was denied in April 2005. The April 2005 rating decision that denied the Veteran’s PTSD claim indicated the reason for denial was that there was no stressor statement. However, the Veteran’s claims file does contain a stressor statement filed September 2004. The AOJ said the Veteran did not provide credible evidence, however the Veteran did provide evidence that he served in a combat zone in a statement in support of claim for service connection for post-traumatic stress disorder. The statement was received by the AOJ in September 2004.The AOJ also had evidence that indicated the Veteran had a diagnosis of PTSD and a link between the diagnosis, symptoms and an in-service stressor. The Board finds that there was sufficient evidence in the record, and in constructive possession of the VA at the time of the April 2005 rating decision, which the AOJ failed to consider. The Veteran also had a note from a non-governmental facility from February 16, 2000 indicating that the Veteran has had a long history of PTSD, thoughts of suicide, and that PTSD was related to time in Vietnam. The Veteran’s statement in support of his claim for PTSD dated September 2004, indicated that he was afraid of enemy combat, that he had flashbacks, nervous sleep, woke up fighting, being on constant patrol of the river and bridge with all sorts of other things caused extensive fear and mental problems while in service. The Veteran also indicated that he was stationed on the 38th Parallel of the DMZ for 11 months; listening to mortars constantly and trying to find the others that were shot up, and that the vehicles were shot up with soldiers inside. In November 2004, the Veteran submitted records of psychiatric treatment classes from 1998 to 2004. The Veteran’s claim file includes medical treatment records from January 2005 that indicate the Veteran was diagnosed with PTSD. The Board finds that the correct facts as they were known at the time were not before the adjudicator. The adjudicator for the 2005 rating decision did not consider the Veteran’s statement in support of claim for service connection for PTSD from September 2004. The AOJ did not consider the Veteran’s service treatment records. Furthermore, there is evidence that the VA had constructive possession of such records that were not before the AOJ adjudicator. Had the correct facts been before the adjudicator the Board finds the outcome would have been different. The Board finds that the error is undebatable, and the sort had it not been made would have manifestly changed the outcome at the time it was made. The AOJ did not consider the Veteran’s PTSD diagnosis and personnel records which indicated that he did serve in a combat zone, particularly in the Korean DMZ. Based on the record and law that existed at the time prior to the adjudication, the AOJ failed to consider all relevant and material evidence that was in VA possession. Therefore, the Board finds that the August 2005 rating decision did contain CUE and but for the AOJ’s failure to appropriately review the evidence in the VA’s possession at that time, it is undebatable that the outcome of the August 2005 rating decision would have been different. Therefore, the Board finds that the Veteran is entitled to an effective date earlier than August 31, 2010. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, Associate 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.