Citation Nr: 24016509
Decision Date: 04/17/24	Archive Date: 04/17/24

DOCKET NO. 191129-45917
DATE: April 17, 2024

ORDER

The motion for reversal or revision of the September 8, 2020, Board of Veterans' Appeals (Board) decision that denied entitlement to an effective date prior to September 15, 2007, for the grant of service connection for posttraumatic stress disorder (PTSD), is denied.

FINDINGS OF FACT

1. In a final decision dated September 8, 2020, the Board denied the claim of entitlement to an effective date prior to September 15, 2017, for the grant of service connection for PTSD. 

2.  The moving party has not alleged an error of fact or law in the September 2020 decision that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error.

CONCLUSION OF LAW

Clear and unmistakable error (CUE) in the Board's September 8, 2020, decision that denied the claim of entitlement to an effective date prior to September 15, 2017, for the grant of service connection for PTSD has not been established. 38 U.S.C. §§ 5109A , 7111; 38 C.F.R. §§ 20.1400-1411.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran, who is the moving party, served on active duty from June 1973 to February 1978. 

This matter is currently before the Board on the moving party's July 2021 motion for revision or reversal on the grounds of CUE in the September 8, 2020, Board decision that denied the claim of entitlement to an effective date prior to September 15, 2017, for the grant of service connection for PTSD. 

The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411 (c).

Whether there was CUE in the September 8, 2020, Board decision that denied the claim of entitlement to an effective date prior to September 15, 2017, for the grant of service connection for PTSD. 

Applicable Caselaw, Statutory, and Regulatory Provisions

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 United States Court of Appeals for Veterans Claims (Court) and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400.

The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-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 this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The Board finds that the present motion complied with these requirements, and the motion is properly before the Board for consideration on the merits.

Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice. 38 C.F.R. Part 20. 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. 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 the law that existed when that decision was made. 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 Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992).

Examples of situations that are not CUE include: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e).

A judicial decision that formulates a new interpretation of the law subsequent to a final VA decision cannot be the basis of a valid CUE claim. George v. Wilkie, 991 F.3d 1227 (2021); Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Although a judicial decision must be given full retroactive effect in all cases that are still open on direct review, it does not affect decisions that are final. Smith v. West, 11 Vet. App. 134, 37-38 (1998); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995) ("new legal principles, even when applied retroactively, do not apply to cases already closed").

Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104 (a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Discussion

In the present case, the moving party alleges CUE in a September 8, 2020, Board decision that denied entitlement to an effective date prior to September 15, 2007, for the grant of service connection for PTSD. 

As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403 (b).

The pertinent laws and regulations at the time of this decision were similar, if not exactly the same, as they are now. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 3.160, 20.201, 20.302.

VA amended its adjudication regulations on March 24, 2015, to require that claims and appeals governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied.

Under the old regulations, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute an NOD. While special wording is not required, the NOD must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review. If the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified, but VA has been liberal in determining what constitutes a NOD. 38 C.F.R. § 20.201 (in effect prior to March 24, 2015); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)).

A valid NOD must (1) express disagreement with a specific determination of the RO; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO decision; (5) be filed by the claimant or the claimant's authorized representative; and (6) express a desire for Board review. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 ; Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002).

A person seeking VA benefits must first establish that they have attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). VA benefits are not payable unless the period of service upon which the claim was based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a).

"If a service member receives... a discharge under other than honorable conditions... , VA is instructed to make a formal character of discharge determination before addressing a claim for benefits on the merits." Robertson v. Shinseki, 26 Vet. App. 169, 175 (2013), aff'd sub nom. Robertson v. Gibson, 759 F.3d 1351 (Fed. Cir. 2014).

In the July 2021 CUE motion, the moving party maintains that correct facts were not before the Board in deciding the case. Specifically, the moving party asserts that although the Board noted the denial of the state unemployment benefits, but it did not address whether the October 1975 VA notification letter on determination of the character of discharge also denied VA compensation. Further, the moving party contends that had this error not occurred, an earlier effective date for service connection would have been warranted prior to September 15, 2007. See July 2021 CUE motion. 

Pertinent facts available to the Board at the time of the September 2020 adjudication are as follows. 

In February 1978, the Veteran was discharged from military service under other than honorable conditions upon his request for discharge under other than honorable conditions. 

In February 1978, the Ohio Bureau of Employment Services requested VA for military information for unemployed compensation purposes. 

In March 1978, the RO in Cleveland, Ohio requested the service department to provide information on facts and circumstances surrounding the Veteran's other than honorable conditions discharge of February 1978. In April 1978, the service department replied with the request with reproduction of proceedings relating to discharge. 

In March 1978, the Cleveland RO sent a due process letter to the Veteran indicating that his application for employment benefits was contingent upon discharge from military service under conditions other than dishonorable. Further, it stated that 

If your service was terminated by an "other than honorable" discharge, we are required to examine all relevant facts, including a report from the Service Department of the facts and circumstances leading to your discharge for the purpose of determining whether or not you were discharged under conditions other than honorable. If you received a "dishonorable" discharge, service records will not be routinely requested by the VA. 

It continued to explain that an unfavorable decision would not only result in denial of the benefit sought, but, in addition, it would bar entitlement to all VA benefits which sought now or in the future based on this period of service. This mail, however, was returned to VA as undeliverable shortly after. 

In May 1978, VA corresponded with the Ohio Bureau of Employment Services concerning the Bureau's request for military information for unemployment compensation purposes. In it, VA indicated that the March 1978 letter to the Veteran regarding this matter was returned undeliverable and requested the Bureau to provide the latest address it had for the Veteran within 15 days of the letter. 

In February 1979, the Ohio Bureau of Employment Services corresponded with VA. It indicated that the Veteran's claim was closed out in May 1978 because it was unable to reach the Veteran when he had moved. But it stated that in February 1979, the Veteran reopened his application for unemployment benefits and provided a new mailing address. The Bureau stated that it was resubmitting the case. 

In March 1979, the RO sent the Veteran at the addressed most recently provided by the Bureau another due process letter similar to the one sent in March 1978. This was returned as undeliverable. 

In April 1979, VA received a response from the service department for its request for verification if discharge had been upgraded. The service department reported that there was nothing on file indicating upgrade of discharge. 

In April 1979, VA returned the Ohio Bureau of Employment Services' Request to VA for Military Information for Unemployment Compensation Purposes, indicating that no decision on character of discharge was made as no current address was of record and mail was returned. 

In July 1979, VA corresponded with the Ohio Bureau of Employment Services indicating that the second request could not be completed as before because it had been unable to give the Veteran his due process rights notice so that he could present any evidence prior to a character of discharge determination being made. VA noted that the mail was returned twice from the address provided by the Bureau as his current address.  

An October 1979 Record of Disclosure of Information under Privacy Act indicates that on behalf of the Veteran, VA made disclosure as to character of separation was made to the Ohio Bureau of Employment Services for the purpose of unemployment benefits. 

In October 1979, VA responded to the Ohio Bureau of Employment Services' Request to VA for Military Information for Unemployment Compensation Purposes, indicating that the Veteran's discharge was under dishonorable conditions. 

On the next day in October 1979, VA issued an administrative decision in which it determined that the Veteran's service was under dishonorable condition and VA benefits could not be extended to him for the period of service. It further stated that the Veteran was entitled to health care for this period of this service for any disability determined to be service-connected. 

On the following day in October 1979, VA sent the Veteran a notification letter, informing him that the character of discharge was found to have been issued under conditions which constitute a bar to the payment of VA benefits. It continued to state:

As a consequence, the period of service upon which that discharge was based does not qualify you for the benefit you applied for, or for any other gratuitous benefit under laws administered by the VA, with the possible exception of medical treatment for any disability or disabilities you incurred or aggravated during active service. If the need for medical treatment arises for such a service related condition, you should apply to your nearest VA office or station with medical facilities. This decision also has the effect of precluding entitlement to gratuitous VA benefits for your dependents and survivors. If you believe our decision to be incorrect, please see the Notice of Procedural and Appeal rights which is attached. 

The claim file does not contain any documents since this October 1979 letter until a July 1985 notification letter, in which the Veteran was denied a certificate for loan guaranty benefits by VA due to the character of his discharge. The Veteran was provided with a notice of procedural and appellate rights. 

The next document submitted subsequent to the July 1985 VA notification letter is a September 15, 2007, VA Form 21-526, in which he claimed entitlement to service connection for PTSD. The Veteran is currently in receipt of service connection for PTSD, effective September 15, 2007. 

In response to the Veteran's claim, the RO notified the Veteran that his claim for compensation benefits must be denied due to the character of his discharge in December 2007. This decision was appealed to the Board. 

In December 2015, the Board granted the Veteran's appeal with respect to his characterization of discharge and found that the discharge was not a bar to VA benefits. The Board notes that while this appeal was pending, the Board for Correction of Naval Records granted the Veteran's request and corrected his discharge to a general discharge in October 2015. 

In March 2016, the Veteran submitted a VA Form 21-526EZ, claiming for PTSD. 

In a May 2016 rating decision, the RO granted service connection for PTSD, effective September 15, 2007. 

In March 2017, VA received a notice of disagreement with respect to the effective date for the grant of service connection for PTSD. 

In August 2018, the Veteran opted into the Rapid Appeals Modernization Program (RAMP), of which VA made acknowledgement in January 2019. 

In a January 2019 rating decision, the RO denied an effective date prior to September 15, 2007, for the grant of service connection for PTSD. 

In November 2019, the Veteran submitted a VA Form 10182, selecting direct review option. 

In the September 2020 decision, the Board found that prior to September 15, 2007, claim, there were no pending requests for entitlement to service connection for an acquired psychiatric disability, to include PTSD, that remained unadjudicated. In making such finding, the Board noted the November 2019 Third Party Correspondence in which he claimed that he filed an application for compensation in 1978 and was barred from compensation as he was discharged under conditions which constitute a bar to the payment of VA benefits. And then, it found that the records show that in February 1979 the Veteran sought unemployment benefits from the Ohio Bureau of Employment Services and that there was no document in 1978 that identified the Veteran was seeking service connection for an acquired psychiatric disability or PTSD at that time. The Board ultimately found that in 1978 the Veteran did not apply for service connection for PTSD or any acquired psychiatric disability. 

In light of the facts and law extant at the time of the September 2020 decision, the Board finds that an error of fact as alleged was not committed in that decision for the following reasons. 

A review of the evidence indicates that the Veteran applied for unemployment benefits with the state of Ohio shortly after his separation from military. VA was prompted by the Ohio Bureau of Employment Services to determine the character of his discharge, and it eventually determined that the character of discharge at that time was a bar to VA benefits. The Veteran was notified of this determination in October 1979 with Notice of Procedural and Appeal rights. The evidence of record does not suggest that at any time since his discharge in February 1978 to October 1979, the Veteran submitted to VA an informal or formal claim of service connection for any disability. Neither VA internal documents indicating further development of a claim for compensation are of record. 

As for the moving party's contention that the October 1979 VA letter notifying the Veteran of determination of the character of discharge contains languages that indicate he had applied for service connection, the alleged error is not outcome determinative; that is, even if the Board considered that the Veteran had claims for VA benefits that were indicated in the October 1979 VA letter, the result, that is, denial of his claim, would not have been manifestly different but for the error for the following reasons. 

First, the Board notes that even if the Veteran indeed had submitted claims of service connection prior to October 1979, any claims pending at the time of October 1979 were also denied by that October 1979 VA letter because "pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable." 38 C.F.R. § 3.12. Additionally, even if a claim of service connection could be reasonably raised by the languages in the October 1979 VA letter as the moving party maintains, such claims of benefits pending at the time of the October 1979 VA letter are deemed to have been denied by the determination of the character of discharge, even if VA did not expressly address that claim in the decision. See Cogburn v. Shinseki, 24 Vet. App. 205, 210 (2010) citing Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). Here, it is clear to a reasonable person that VA's determination that his character of discharge was a bar to VA benefits disposes any claims for VA benefits pending at that time. Adams, 568 F.3d at 962-963. 

Second, since no notice of disagreement or additional evidence was received after the October 1979 VA determination on the character of discharge, the October 1979 adjudication became final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 3.156, 19.118, 19.153 (1979). Accordingly, any claims that were implicitly denied in the October 1979 adjudication are also deemed to have become final. 

Lastly, there is no informal or formal claim for service connection for PTSD until the Veteran submitted his claim on September 7, 2007. Therefore, the earlier effective date prior to September 7, 2007, for the grant of service connection for PTSD is still not warranted, which is the same conclusion that the Board reached in its December 2020 decision. Review of the record reflects no other pled CUE arguments raised by the moving party.

For the foregoing reasons, the moving party has failed to show that the September 8, 2020, Board decision contains an error, of fact or of law, that compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Hence, the Veteran's CUE motion must be denied.

 

 

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Y. Taylor, 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.