Citation Nr: 21029990 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-16 977 DATE: May 17, 2021 ORDER The motion alleging clear and unmistakable error (CUE) in the December 2010 rating decision denying service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than November 30, 2015, for the grant of entitlement to service connection for PTSD is denied. FINDINGS OF FACT 1. At the time of the December 2010 rating decision the correct facts, as they were known at the time, were before the adjudicator; the probative value to be assigned to the August 2010 VA examination report, the Veteran's lay statements, and other medical evidence, as well as whether the facts found were sufficient to grant the claim, all involved a weighing and evaluation of evidence; the statutory-regulatory provisions extant at that time were correctly applied; there was no error in the rating decision other than potential disagreement regarding the weighing or evaluation of evidence. 2. The Veteran did not appeal the December 2010 rating decision which, in relevant part, denied entitlement to service connection for PTSD and she did not submit any evidence within the one-year period following this decision. 3. Subsequent to the December 2010 rating decision becoming final, the Veteran next filed a claim entitlement to service connection for PTSD on November 30, 2015. CONCLUSIONS OF LAW 1. The criteria for finding that the December 2010 rating decision contained CUE in failing to award service connection for PTSD have not been met. 38 U.S.C. §§ 1155, 7104(a), 7105(d)(5); 38 C.F.R. § 3.105(a). 2. The December 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 3. The criteria for entitlement to an effective date earlier than November 30, 2015, for the grant of entitlement to service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400; see also 38 C.F.R. § 3.157 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 2005 to June 2010. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2021 Board Hearing. The record contains a transcript of the hearing. The claims on appeal are those listed above. Some of the Veteran's filings imply that she might also have intended to claim that there was clear and unmistakable error (CUE) in the April 2016 rating decision. However, the April 2016 rating decision is on direct appeal, so there can be no CUE motion as it is not final. The Board will review the factual and legal determinations made in that decision de novo (anew, without deference to the RO's findings). Instead, as set forth below, the Board has analyzed a claim of entitlement to an effective date earlier than November 30, 2015, for the award of service connection for PTSD pursuant to the April 2016 rating decision. The Veteran has also stated a cognizable request for revision or reversal of the December 2010 rating decision that denied service connection for PTSD. That claim is also analyzed below. There are no other claims before the Board in this appeal. 1. Whether there was clear and unmistakable error (CUE) in the December 2010 rating decision denying service connection for PTSD The Veteran argued in a June 2016 VA 21-4138 Statement that "[a]ll the information that the VA used to grant this disability on the April 2016 rating was also a matter of record when my claim was first filed in June 2010." In a November 2016 VA 21-526, the Veteran filed a more explicit claim of CUE "for EED for PTSD grant." Clear and unmistakable error (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. For CUE to exist, either (1) the correct facts, as they were known at the time, were not before the adjudicator or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Review of a request for revision on the basis of CUE is based on the record and law that existed at the time of the decision in question. Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc). VA's failure to comply with the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) ("[A] breach of the duty to assist cannot constitute CUE."). Likewise, an allegation that the adjudicator improperly weighted or evaluated evidence cannot constitute CUE. See also Damrel, 6 Vet.App. at 246. The Veteran and her representatives have asserted various arguments in support of her CUE claim. Importantly, the Veteran through her representative, explicitly requested that the Board consider "whether the 2010 rating decision contained clear and unmistakable error." See February 2021 Board Hearing Tr. at 6. At the February 2021 Board Hearing, the Veteran's representative argued that the August 2010 VA examination was inadequate because the examiner, according to the Veteran's representative, failed to offer an opinion regarding whether the Veteran had PTSD and, therefore, "it appeared like a duty to assist failure." See February 2021 Board Hearing Tr. at 3. This argument is unavailing, because VA's failure to comply with the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) ("[A] breach of the duty to assist cannot constitute CUE."); 38 C.F.R. § 3.105(a)(1)(iv); accord 38 C.F.R. § 20.1403(d)(2). The Veteran made a similar argument in support of the CUE claim and theory that the August 2010 VA examination was flawed and, so, there was error in the December 2010 rating decision in relying on the August 2010 examination to deny her PTSD claim. See February 2021 Board Hearing Tr. at 4-6; see also April 2017 Notice of Disagreement ("Since I never had a personality disorder and showed symptomatology of PTSD since my domestic violence stressor, PTSD should have been my diagnosis from the beginning."); March 2018 VA Form 9 (same). As noted above, the alleged inadequacy of the August 2010 VA examination and VA's alleged failure to provide an adequate examination cannot constitute CUE. The Veteran argues that the more recent March 2016 VA examination revised the prior diagnoses such that it is now clear that she had PTSD, and, therefore, the 2010 rating decision contains CUE. This argument based on a "corrected" diagnosis cannot succeed. See 38 C.F.R. § 3.105(a)(1) ("Review for clear and unmistakable error in a prior final decision of an agency of original jurisdiction must be based on the evidentiary record . . . that existed when that decision was made."); accord 38 C.F.R. § 20.1403(1) ("Examples of situations that are not clear and unmistakable error. (1) Changed diagnosis. A new medical diagnosis that 'corrects' an earlier diagnosis..."). Likewise, an argument that the RO should not have assigned the August 2010 VA examination any probative value is merely a disagreement as to how the facts were weighed or evaluated and cannot constitute CUE. See Simon v. Wilkie, 30 Vet. App. 403, 407 (2018) (noting that CUE is not present when there is a mere "disagreement as to how the facts were weighed or evaluated"); 38 C.F.R. § 3.105(a)(1)(vi); accord 38 C.F.R. § 20.1403(d)(3). Similarly, to the extent the Veteran has claimed or argued that the evidence of record at the time was sufficient to override the August 2010 VA examiner's stated conclusion that the Veteran did not "meet the DSM-IV criteria for a diagnosis of PTSD," she has not identified any diagnosis of PTSD of record prior to the December 2010 rating decision. In fact, she admitted at her hearing that the only post-military medical evidence of record at the time of that rating decision was the August 2010 VA examination and, further it was not until much later that she was diagnosed with PTSD. See February 2021 Board Hearing Tr. at 5-6 ("Q. [A]t that point in time in 2010 then, if I understand you correctly, the only medical evidence in the file as to your mental health would have been that VA examination that was done? A. Right. And then whatever else was in my [service] medical record."). Neither she nor the VA adjudicator in December 2010 is competent to diagnose her condition as PTSD in 2010, whether based on the August 2010 VA examination (in contravention of the VA examiner's opinion) or on the basis of the service medical records. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"). Here, there is no evidence the Veteran was competent to identify the mental health condition. As noted, she further testified that there was no diagnosis of PTSD by a medical professional until at least 2015; consequently, her disagreement with the 2010 VA examiner's opinion that she did not meet the criteria for a diagnosis of PTSD does not establish error, much less error that makes it "absolutely clear that a different result would have ensued." 38 C.F.R. § 3.105(a)(1)(i). While she argues that the examiner should have provided an explanation as to why a diagnosis of PTSD was not provided, again, that is an argument as to the duty to assist, which does not implicate CUE. In summary, the Veteran and her representatives have raised alleged errors which, even if accepted as errors at the time, would not constitute CUE. Neither the Veteran nor her representatives have identified any law or regulation that was not applied or that was incorrectly applied. They also have not identified evidence that was not considered in December 2010 and have not shown that "the result would have been manifestly different but for" a failure to consider evidence of record at the time of the December 2010 rating decision. The Board will not search the record for other possible deficiencies in the December 2010 rating decision. A request for revision or reversal based on clear and unmistakable error "must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error." 38 C.F.R. § 3.105(a)(1)(vii)(B). Moreover, "[n]on-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence." Id. The Board understands the Veteran's frustration, particularly given the very favorable and convincing opinion that is of record now diagnosing her with PTSD related to in-service stressors. However, the law only permits the Board to reverse or revise prior final decisions in limited circumstances based on the evidentiary record and the law that existed when the contested decision was made. As sympathetic as the Board is to the Veteran's claim, the legal standards for reversal or revision of the December 2010 rating decision have not been met. The motion to reverse or revise the December 2010 rating decision based on CUE and award an earlier effective date for the grant of service connection for PTSD is denied. 2. Entitlement to an effective date earlier than November 30, 2015, for the grant of entitlement to service connection for PTSD The Veteran contends that she is entitled to an effective date prior to November 30, 2015, for the grant of entitlement to service connection for PTSD. Her contentions have been the same for both her CUE claim and her claim of entitlement to an earlier effective date. Specifically, she has argued that the evidence of record, particularly including the March 2016 VA examination, supported the award of service connection for PTSD as early as her initial June 2010 claim. She has not alleged or argued that she appealed the December 2010 rating decision or that it otherwise did not become final. She has not alleged or argued that she filed any claim to reopen after that December 2010 rating decision but prior to the November 30, 2015 effective date currently assigned for PTSD. Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date 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. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases, the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. §§ 3.400(r), 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed.Cir. 2003). As to what constitutes a claim, a claim is defined as 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); 3.155 (2015). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). 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 a veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; see also Norris v. West, 12 Vet. App. 413, 421 (1999). The Board also notes that, under 38 C.F.R. § 3.157(b)(1) (2014), a report of examination or hospitalization may constitute an informal claim. However, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit." Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). Section 3.157 was amended effective March 24, 2015, to eliminate the provisions providing for constructive receipt of VA records of hospitalization or examination and other medical records as informal claims. The Veteran submitted a May 2010 VA 21-526c Pre-Discharge Compensation Claim seeking service connection for PTSD. That claim was denied in a December 2010 rating decision. A December 2010 Notice Letter informed the Veteran of the denial of her PTSD claim. The Veteran did not appeal, and no additional, relevant evidence was received within one year of that denial, so the December 2010 rating decision became final. 38 C.F.R. § 20.1103. The Veteran has not argued otherwise. See February 2021 Board Hearing Tr. at 6 (acknowledging receipt of a copy of the December 2010 rating decision and that she did not appeal that initial denial). There are also no relevant VA records dated within one year of that denial that would affect the finality of that decision. The Veteran has not identified and the record does not include any further communications from the Veteran relating to her PTSD, much less asserting a claim of entitlement to benefits, until her November 2015 VA 21-0966 Intent to File, which was received on November 30, 2015. She submitted private treatment records from prior to that date, but not until December 29, 2015. See also December 2015 VA 21-0781a, Statement in Support of Claim for Service Connection for PTSD; December 2015 VA 21-526EZ. She also submitted additional copies of her service treatment records, but neither she nor her representative have argued, nor does the Board's review of the record reveal, that additional, relevant service records were added to the file that were not already of record at the time of the December 2010 rating decision. See 38 C.F.R. § 3.156(c). The earliest VA treatment records in the claims file are from March 2016. Therefore, even if they included a claim for benefits, they would not support an effective date prior to November 30, 2015. Because the December 2010 rating decision became final and the first claim to reopen was received by VA on November 30, 2015, the earliest possible effective date is November 30, 2015. 38 C.F.R. §§ 3.400(r). No earlier effective date is available. Entitlement to an effective date prior to November 30, 2015, for the award of service connection for PTSD is denied. Duties to Notify and Assist As discussed above, although the Veteran and her representatives have questioned the adequacy of the August 2010 VA examination and whether an additional opinion should have been obtained prior to the December 2010 rating decision, CUE claims are based on the evidence of record at the time of the challenged decision. There is no evidentiary development for such claims. See, e.g., Livesay v. Principi, 15 Vet. App. 165, 178 (2001) ("These rules [implementing the VCAA] make clear that several of the claimant-friendly provision of title 38 generally applicable to the adjudication of VA benefits claims do not apply to CUE motions."; "there is nothing in the text of the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to CUE motions"). The Veteran has not otherwise raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.