Citation Nr: 21030892 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-37 960 DATE: May 19, 2021 ORDER Entitlement to an effective date earlier than November 1, 2012 for the grant of service connection for posttraumatic stress disorder (PTSD) to include whether there was clear and unmistakable error (CUE) in a January 1994 rating decision is denied. FINDINGS OF FACT 1. A January 1994 rating decision denied service connection for PTSD; the Veteran was notified of the decision and of his appellate rights but did not initiate an appeal within one year of notice, so the decision is final. 2. The January 1994 rating decision was supported by the evidence then of record, was consistent with the laws and regulations then in effect and did not contain a clear and unmistakable error that was outcome determinative. 3. A September 1996 administrative decision denied the May 1996 claim to reopen because the Veteran did not submit any of the requested evidence. 4. On November 1, 2012, the RO received a claim to reopen the claim for entitlement to service connection for PTSD. 5. Based on evidence that the Veteran's PTSD was due to fear of military or terrorist activity, the RO granted service connection for PTSD, effective November 1, 2012. 6. A March 1968 service personnel record added to the file in January 2014 is not relevant for the purpose of reconsidering the January 1994 rating decision. 7. No record was received after the September 1996 administrative denial or before the November 1, 2012 claim that may be construed as a claim for service connection for PTSD. CONCLUSION OF LAW The criteria for an earlier effective date prior to November 1, 2012 for the grant of service connection for PTSD, to include as due to CUE, have not been met. 38 U.S.C. §§ 1155, 5101, 5103A, 5107, 5109A, 5110; 38 C.F.R. §§ 3.1, 3.105, 3.151, 3.155 (in effect prior to March 24, 2015), 3.156(c), 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1967 to June 1970 and November 1974 to November 1991. This appeal to the Board of Veterans' Appeals (Board) is from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is in the record. In February 2020, the Board denied the Veteran's claim; however, he appealed the decision to the Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Remand, vacated the Board decision, and remanded the matter. Entitlement to an effective date earlier than November 1, 2012 for the grant of service connection for PTSD to include whether there was CUE in a January 1994 rating decision. The Veteran contends that the effective date should go back to when he filed his original claim in 1992 because the claim was granted based on the same information that was submitted in 1992. See October 2014 NOD. The record shows that the Veteran separated from service in November 1991 and filed a claim in December 1991. Although the claim did not include a mental health disorder, the Veteran was scheduled for a VA psychiatric examination and as a result of the February 1992 examination he was diagnosed with PTSD. Regarding his stressor, he reported that he drove a mail truck in Vietnam. He indicated that there were usually only two people in a truck and an armored personnel carrier accompanied them when there was heavy fighting. During the Tet Offensive the back of his truck was hit where he and machine gunner were sleeping. The machine gunner was hit in the shoulder and had a medical evacuation. See February 1992 VA Examination. In April 1992, the RO started to develop the claim for entitlement to service connection for PTSD. See April 1992 Deferred Rating. In May 1992, the Veteran provided a stressor statement that included the name of the gunner and other Vietnam stressors. See May 1992 Statement in Support of Claim. In February 1993, the RO requested stressor corroboration from the U. S. Army & Joint Service Environmental Support Group (ESG) regarding the injured gunner. ESG provided the Veteran's assignment to the 25th Administration Co. 25th Infantry Division, where and when the truck was hit during the Tet Offensive, and the gunner's name. See February 1993 Third Party Correspondence. The June 1993 ESG response included extracts from the Tet Offensive. ESG stated it was unable to document the Veteran's participation in fighting or that he drove a mail truck between Army bases, but offered information regarding a February 1968 rocket attack at Cu Chi, the explosion of an ammunition storage dump, and other combat activities in the area of Cu Chi and Saigon. ESG requested additional information about the gunner and noted that morning reports could be used to verify missing, wounded, or killed in action and that this information was available through the National Archives and Records Administration. See June 1993 Third Party Correspondence. In August 1993, the Veteran provided a statement that the gunner was assigned to the 25th Infantry Division, AG. Admin Company, and his own personnel records showed that he was in the 25th Admin Company in Vietnam. Also of record was a personnel record that shows the Veteran and gunner were sent to Vietnam at the same time. See August 1993 Statement in Support of Claim and August 1993 Military Personnel Records. The updated request to ESG in September 1993 notes that the gunner and Veteran were in the 25th Infantry Division, AG, Admin Company. See August 1993 Third Party Correspondence. The December 1993 ESG response states that Army casualty data did not list the gunner was wounded, injured, or killed in Vietnam, but noted that ESG did not maintain copies of morning reports and, therefore, could not verify the gunner was assigned to that unit. See December 1993 Correspondence. A January 1994 rating decision denied entitlement to service connection for PTSD. Regarding the evidence, the decision noted that the Veteran's service treatment records did not show any symptoms, complaints, or treatment for an acquired psychiatric disorder. Service records showed he served in Vietnam as a postal clerk with the 25th Admin Company, 25th Infantry Division, but he had no combat decorations and that ESG stated the gunner the Veteran identified as being injured was not on the list of those wounded or killed, and that there was no evidence he was ever assigned to the Veteran's unit. A February 1992 VA examination contained a diagnosis of PTSD, but in the absence of objective verifiable evidence of exposure to a life-threatening stressor during service, the claim was denied. In May 1996, the Veteran attempted to reopen his claim, but the claim was administratively denied in September 1996 since the Veteran did not submit the requested evidence. On November 1, 2012, the RO received the Veteran's next claim to reopen. See November 2012 Veteran Supplemental Claim. He had a VA examination in September 2013 wherein the examiner diagnosed PTSD. The Veteran reported that his truck was blown up from an artillery round, he was shot at in Vietnam, and that he was subjected to rockets and mortars. The psychologist listed all three as stressors that met criterion one for a PTSD diagnosis and all three stressors were identified as being related to fear of hostile military or terrorist activity. The clinician opined that the Veteran's PTSD is at least as likely as not due to his fear of hostile military or terrorist activity. See September 2013 CAPRI records. A December 2013 rating decision denied the claim on the basis that new and material evidence was not received. However, the Board notes that this decision did not include consideration of the September 2013 VA examination. In January 2014, the Veteran requested reconsideration of the claim on the basis that the more relaxed evidentiary standard that was enacted a few years earlier should be considered as new and material evidence and override the regulations that were in effect in 1994. He also included information regarding the friend who was injured during the Tet Offensive when they were together. See January 2014 Statement in Support of Claim. In January 2014, the Veteran submitted an additional service personnel record dated in March 1968 from the 25th Admin Company, 25th Infantry Division that shows both he and the gunner were promoted to E-4. See January 2014 Military Personnel Record. A September 2014 rating decision granted service connection for PTSD, effective November 1, 2012. Another service personnel record received in August 2016 shows that the Veteran and gunner were in the 25th Administration Company, 25th Infantry Division. See August 2016 Military Personnel Record. In August 2016, the Veteran asserted that the RO had sufficient evidence to grant his PTSD because there was clear evidence of exposure to life-threatening stressors that was provided in 1992. The June 1993 letter failed to validate any information except that an ammunition dump was blown up during an attack at Cu Chi, and VA failed to verify the existence of the gunner even though VA had copies of orders of his assignment or that the machine gunner manning the tower at Camp Red Ball had his leg blown off. See August 2016 Correspondence. During his November 2019 hearing, the Veteran asserted that the effective date for PTSD should go back to 1991, when he separated from service, because the original claim was based on incomplete information and that VA did not develop the claim properly to corroborate his stressor. He also stated that the claim was granted based on the same information he provided in 1991. See November 2019 Hearing Transcript. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase 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 (in effect prior to March 24, 2015). The United States Court of Appeals for the Federal Circuit has determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005). Under the prior regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or their 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). An alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE (because an award of benefits following later development would be based upon evidence that was not of record at the time of the earlier rating decision). See Elkins v. Brown, 8 Vet. App. 391, 396 (1995). An asserted failure to evaluate and interpret the evidence correctly is not CUE. Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994). CUE is more than a difference of opinion. 38 C.F.R. § 3.105(b). CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated;" and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Another exception to the effective date rule set forth above arises if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). Pursuant to 38 C.F.R. § 3.156(c)(1), if at any time after VA issues a decision on a claim it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when it first decided the claim, VA is required to reconsider the claim de novo. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017); George v. Shulkin, 29 Vet. App. 199 (2018). This means that when relevant service records are newly associated with a claimant's file, VA has a duty to reconsider the veteran's previously denied claim on the merits. The purpose of this exception is to put the veteran in the same position he or she would have been in had VA considered the records in the first place. Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). The term "relevant" in the context of section 3.156(c)(1) means noncumulative and pertinent to the matter at issue in the case. See Kisor, 869 F.3d at 1368-69. Where the newly obtained records do not remedy the defects of the prior claim and contain facts that were never in question, they are not "relevant" within the meaning of 38 C.F.R. § 3.156(c)(1). Id. at 1368-69. Regulation 38 C.F.R. § 3.156(c)(1) provides that such relevant service department records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. However, 38 C.F.R. § 3.156(c)(2) specifically notes that paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. Once it is determined that reconsideration is warranted under 38 C.F.R. § 3.156(c)(1), paragraph (c)(3) establishes the effective date for any benefits granted as a result of reconsideration. Kisor, 869 F.3d at 1363. That section provides that an award made based at least in part on the newly received service records "is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. . . . " 38 C.F.R. § 3.156(c)(3). "Section 3.156(c) thus provides for an effective date for claims that are reconsidered that is different from the effective date for claims that are reopened." Kisor, 869 F.3d at 1363. In the January 2021 JMR, the parties agreed that the Board erred by not considering or discussing whether 38 C.F.R. § 3.156(c) applied. They note the Veteran submitted a service record in 2014 that shows he and the gunner were promoted and that the header showed it was from the 25th Administration Co., 25th Infantry, which was the same unit the Veteran was assigned to in Vietnam. Since it appeared that the record existed in January 1994 but was not in the file when the claim was decided, they stated the Board should have considered whether section 3.156(c) applied. Here, the Board finds the promotion record that indicates the Veteran and the gunner were assigned to the same unit in Vietnam does not require reconsideration under 38 C.F.R. § 3.156(c)(1) since the record is not relevant. Based on the March 1968 date of the document, the promotion records appears to have been in existence but not in the claims file at the time of the January 1994 rating decision. The lack of a corroborated stressor was the basis for the claim being denied in January 1994. While one could say that the record is relevant since it provides some corroboration to the Veteran's assertion that he and the injured gunner were in the same unit, it ultimately does not satisfy the definition of relevant, as defined in Kisor, since it is cumulative. Although the service department record is official documentation that indicates the Veteran and the gunner were in the same unit, the Veteran had already made the same assertion. When the RO attempted to corroborate the stressor with ESG in August 1993, it was already noted that the gunner was reportedly in the 25th Infantry Division. The December 1993 response based on the information provided states that the gunner's name was not on the Army's list of those wounded, killed, or injured in Vietnam. Thus, it is obvious that even if the official record had been in the record in January 1994, the same response would have been received regarding the gunner since the ESG search was already based on the correct unit information. Since the Board finds that the personnel record noted in the JMR is not relevant, reconsideration of the January 1994 claim is not required. Even if the Board found otherwise, the grant of service connection in September 2014 was not based in whole or in part on the service department record. The rating decision does not discuss the basis for the grant; however, the Board notes that the request for VA examination demonstrates the RO's intent to consider that claim based on the relaxed evidentiary standard regarding PTSD stressors that came into effect on July 13, 2010. See August 2013 Request for Physical Examination. Regulation 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). When the September 2013 VA examiner provided a PTSD diagnosis related to stressors due to fear of hostile military or terrorist activity, the truck attack was noted but there was no reference to the gunner or his injury. Thus, the evidence suggests that the gunner's injury was not contemplated as part of the stressor associated with the PTSD diagnosis or the opinion linking the diagnosis to the stressor. Moving on to the allegation of CUE, the Board finds that the Veteran essentially asserted a duty to assist error since the RO did not adequately develop the stressor information when he first raised the claim. His other contention that the claim was granted based on the same evidence that was initially available in January 1994 is seen as a challenge to how the evidence was weighed; in other words, it was the same evidence considered with a different outcome. As previously noted, neither an error in the duty to assist or the challenge to the how the evidence is weighed is a proper basis for raising a CUE claim. After the Veteran filed the claim to reopen in November 2012, he properly identified the basis for the grant, which was that a recent change in the law reduced the evidentiary burden and allowed the claim to be granted. In light of the foregoing, none of the exceptions to the finality of the January 1994 rating decision apply. The only remaining way to establish an earlier effective date is if there is evidence of a pending claim prior to November 1, 2012. Entitlement to service connection for PTSD was initially denied in the January 1994 rating decision. The Veteran did not initiate an appeal of the denial, so the decision became final. See 38 C.F.R. §§ 20.302, 20.1103. (Continued on the next page) The May 1996 application to reopen the claim was administratively denied in September 1996 and the Veteran did not appeal the decision. Consequently, this decision also became final. Id. There is nothing in the file between September 1996 and November 1, 2012 that may be construed as a formal or informal claim for PTSD. Thus, the effective date for the grant of service connection may be no earlier than when the application to reopen the claim was received on November 1, 2012. Consequently, there is no reasonable doubt regarding the effective date, so the claim must be denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst 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.