Citation Nr: 21022458 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 19-11 194A DATE: April 15, 2021 ORDER Entitlement to an earlier effective date of May 27, 2018, but no earlier, for the award of a 100 percent rating for posttraumatic stress disorder (PTSD) with schizoaffective disorder (previously rated as major depressive disorder), based on clear and unmistakable error (CUE) in a June 2020 Board decision, is granted. FINDINGS OF FACT 1. The Department of Veterans Affairs (VA) Regional Office (RO) acknowledged receipt of a May 27, 2018, intent to file a claim for compensation benefits, and within one year, the Veteran subsequently submitted a formal claim for an increased rating for a psychiatric disorder on December 27, 2018. 2. A June 2020 Board decision that granted a 100 percent rating for PTSD with schizoaffective disorder effective from December 27, 2018, was based on CUE, as the statutory and regulatory provisions extant at the time were not correctly applied. CONCLUSION OF LAW The June 2020 Board decision that granted a 100 percent rating for PTSD with schizoaffective disorder effective from December 27, 2018, contains CUE, and an assignment of an effective date of May 27, 2018, but no earlier, for the grant of a 100 percent rating for PTSD with schizoaffective disorder is granted. 38 U.S.C. §§ 5110, 5107, 7111; 38 C.F.R. §§ 3.105, 3.155, 3.400, 20.1400-20.1406. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, the moving party, served on active duty from June 2010 to October 2014. This matter is currently before the Board on the Board’s own motion for revision or reversal on the grounds of CUE in a June 2020 Board decision that, in pertinent part, granted entitlement to a 100 percent rating for PTSD with schizoaffective disorder, effective December 27, 2018. In a December 2020 letter, the Veteran was notified of the Board’s motion, a summary of the reasons for docketing the motion, and notice of the consequences of a determination of CUE. See 38 C.F.R. § 20.1407. In a December 2020 correspondence, the Veteran, through her representative, responded that the 100 percent rating for her PTSD with schizoaffective disorder should be effective from the date of her discharge from service. As such, due process has been satisfied. A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. A decision by the Board is subject to revision on the grounds of CUE. 38 U.S.C. § 7111(a). Review to determine whether clear and unmistakable error exists in a final decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 U.S.C. § 7111(c); 38 C.F.R. § 20.1400. Here, the Board brought this motion to determine whether the June 2020 Board decision contained CUE such that the prior outcome must be reversed. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400 -20.1407. There is no indication that the June 2020 Board decision was appealed to and decided by the United States Court of Appeals for Veterans Claims or any other court. Thus, the Board finds that the motion is properly before the Board for consideration on the merits. Clear and unmistakable error 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and law that existed when that decision was made. 38 C.F.R. § 20.1403; see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The pertinent laws and regulations at the time of the June 2020 Board decision are the same as they are now. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). 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 VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means 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). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or her representative, may be considered an informal claim. 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. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The record shows a May 29, 2018, VA notification letter acknowledged receipt of the Veteran’s intent to file a claim for compensation on May 27, 2018. The Veteran’s formal application, or VA Form 21-526EZ, was received in December 2018, which is within one year of the receipt of the May 2018 intent to file a claim for compensation. Although, the Veteran’s intent to file a claim for compensation, VA Form 21-0966, is not associated with the record, the RO acknowledged receipt of the form. Thus, the Board finds that the Veteran filed her intent to file a claim for compensation on May 27, 2018. In June 2020, in granting the Veteran an increased rating of 100 percent for her PTSD with schizoaffective disorder, the Board did not address the May 29, 2018, notification letter acknowledging receipt of the Veteran’s intent to file a claim for compensation on May 27, 2018, followed by a formal application for an increased rating for a psychiatric disorder in December 2018. The Board finds this was clear and unmistakable error. It is undebatable that the June 2020 Board did not apply 38 C.F.R. § 3.155, and thus failed to consider the complete claim filed as of March 27, 2018, the date the intent to file a claim was received. The correct application would have “manifestly changed the outcome,” as the 100 percent rating for PTSD with schizoaffective disorder would have been granted effective from May 27, 2018, if 38 C.F.R. § 3.155 was correctly applied. As the effective date for an increased rating can be up to one year prior to receipt of the claim for an increased rating, the Board has also considered whether there is a factually ascertainable worsening of the Veteran’s symptoms at any time in the one-year period prior to May 27, 2018. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98. After a thorough review of the record, the Board finds that there was not a factually ascertainable worsening of the Veteran’s PTSD with schizoaffective symptoms in the one-year period prior to May 27, 2018. Here, the earliest record is from November 2018 that shows the Veteran was hospitalized for psychiatric treatment due to a suicide attempt and given a referral for counseling. The treating physician requested that her next provider conduct a psychiatric evaluation. As explained above, the Veteran filed her intent to file a claim for compensation on May 27, 2018, and the record does not indicate, and the Veteran has not asserted, that she filed a formal or informal claim prior to that date, nor are there records showing an ascertainable worsening of the Veteran’s symptoms within the one-year period prior to May 27, 2018. The Board acknowledges the Veteran’s assertion that she is entitled to a 100 percent rating for PTSD with schizoaffective disorder from the date of her discharge from service, however, the issue of the propriety of the initial rating assigned for the Veteran’s psychiatric disorder was not before the Board and thus not addressed in the June 2020 decision, and thus this issue is not currently before the Board by way of the CUE motion. The Veteran did not perfect a Board appeal as to the November 2014 RO rating decision that granted service connection for anxiety disorder, also diagnosed as trauma related stress disorder and mixed depressive disorder and borderline personality disorder (claimed as borderline personality and adjustment disorder), and assigned an evaluation of 50 percent, effective from October 29, 2014. Thus, to challenge the propriety of the initial rating assigned for the psychiatric disorder, the Veteran must file a motion with the RO, alleging CUE in the November 2014 rating decision that granted service connection for the Veteran’s psychiatric disorder and awarded the initial 50 percent rating effective from October 29, 2014. Accordingly, the motion to revise or reverse the Board’s June 2020 decision on the grounds of CUE is granted and entitlement to an effective date of May 27, 2018, but no earlier, for the grant of a 100 percent rating for PTSD with schizoaffective disorder is granted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.