Citation Nr: 25003595
Decision Date: 03/14/25	Archive Date: 03/14/25

DOCKET NO. 15-32 626
DATE: March 14, 2025

ORDER

Entitlement to an effective date earlier than November 18, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD) based on reconsideration of an October 1996 final rating decision pursuant to 38 C.F.R. § 3.156(c) is denied.

The motion to reverse on the basis of clear and unmistakable error (CUE) the October 1996 rating decision that denied entitlement to service connection for PTSD is denied.

FINDINGS OF FACT

1. The October 1996 rating decision which denied entitlement to service connection for PTSD is a final decision.

2. The service treatment and military personnel records obtained in response to the Board's August 2019 remand are of no probative value to the claim of entitlement to service connection for PTSD and could not have changed the outcome of the October 1996 final rating decision.

3. The October 1996 rating decision that denied service connection for PTSD was based on the record which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date earlier than November 18, 2010, for the grant of service connection for PTSD based on reconsideration of an October 1996 final rating decision pursuant to 38 C.F.R. § 3.156(c) have not been met. 38 C.F.R. § 3.156(c); Flores-Vazquez v. McDonough, 996 F.3d 1321 (Fed. Cir. 2021).

2. The criteria for the award of service connection for PTSD on the grounds of CUE in an October 1996 rating decision have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.105 (a), 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1964 to December 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The transcript is associated with the record.

In August 2022, the Board denied the Veteran's CUE claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2024 Memorandum Decision, the Court vacated and remanded the claim to the Board for further proceedings consistent with the Memorandum Decision.

The outcome of the Veteran's appeal of the effective date assigned for service-connected PTSD is not dependent on the outcome of any request for revision of an earlier decision on the basis of CUE. At the same time, adjudication of his appeal does not preclude a successful collateral attack on the earlier decision. Therefore, it is not prejudicial for the CUE challenge raised by the Veteran to be adjudicated separately from the earlier effective date claim currently before the Board. The Board has bifurcated these issues due to the distinct law involved pertaining to each issue. See Boyd v. McDonald, 27 Vet. App. 63, 69 (2014) (the Board has the authority to bifurcate issues and decide them in separately without providing an appellant with advance notice that it would do so). Addressing the CUE claim separately will also provide clarity in addressing the distinct issues in the May 2024 Memorandum Decision.

1. Entitlement to an effective date earlier than November 18, 2010, for the grant of service connection for PTSD based on reconsideration of an October 1996 final rating decision pursuant to 38 C.F.R. § 3.156(c).

The Veteran claims that he is entitled to an effective date earlier than November 18, 2010, for the grant of service connection for PTSD. Specifically, he contends that service treatment and military personnel records obtained following a Board remand in August 2019 triggered the application of 38 C.F.R. § 3.156(c), and thus warrant an earlier effective date based on the date of claim at the time of the October 1996 rating decision at issue in this appeal.

For the reasons that follow, the Board finds that relevant official service department records were not associated with the Veteran's claims folder. As such, the October 1996 rating decision at issue did not require reconsideration under 38 C.F.R. § 3.156(c). As such, it was a final decision. An earlier effective date for the grant of service connection for PTSD on this basis is therefore not warranted. 

Section 3.156(c)(1) provides that at any time after VA issues a decision on a claim, 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, VA will reconsider the claim. Such records include service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. 38 C.F.R. § 3.156(c)(1)(i). The mere receipt of additional service department records is not enough to trigger reconsideration; the records must be "relevant." 

To be "relevant" for purposes of reconsideration under 38 C.F.R. § 3.156(c)(1), the new service record must address a factual issue that was dispositive against the veteran in the prior VA adjudication, i.e., speak to an element in dispute, and therefore affect the outcome of the case. Kisor v. McDonough, 995 F.3d 1347 (Fed. Cir. 2021).

Where VA makes an award based "all or in part" on newly associated service department records, the assigned effective date will be "the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3). Therefore, if a claim is "reconsidered" under 38 C.F.R. § 3.156(c), the claim will be treated as though the prior AOJ or Board denial never occurred. The point of the § 3.156(c) provisions is to put veterans in the position they would have been had VA obtained and considered relevant service department records before adjudicating their earlier claims. See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). Under such circumstances, the claim is not treated as a new and material evidence claim (see § 3.156(a)), or a CUE claim (see § 3.105(a)), but rather, is governed by § 3.156(c).

To qualify for an earlier effective date under 38 C.F.R. § 3.156(c)(3), the award of benefits need not be based "solely" on the new service department records but must be based "at least in part" on service department records that were not before the VA at the time of the initial denial of the claim. Flores-Vazquez v. McDonough, 996 F.3d 1321 (Fed. Cir. 2021). In the operation of § 3.156(c), "the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted." Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008).

Analysis

In August 2022, the Board denied entitlement to a revision of an October 1996 rating decision denying service connection for PTSD on the basis of CUE. In its decision, the Board acknowledged the Veteran's contention that 38 C.F.R. § 3.156(c) applied but concluded that additional service records later obtained and associated to the Veteran's claims file in response to an August 2019 Board remand did not contain evidence relevant to the Veteran's claim.

In the May 2024 Memorandum Decision, the Court noted that there was a dispute as to whether a DA Form 20 ("Enlisted Qualification Record") that included the notation of "Vietnam Counteroffensive Phase II" was of record prior to the October 1996 rating decision, and if not, whether it triggers reconsideration of the Veteran's prior claim. There was also a dispute as to whether a Certificate of Recognition from the Cantigny War Memorial Museum of the First Division qualifies as a service department record, and if it is, whether it was relevant to the reasons for VA's prior denials of the claim. The Court remanded the matter for the Board to consider these factfinding issues in the first instance.

The October 1996 rating decision denied service connection for PTSD, basing its decision on the fact that the medical evidence of record "fails to establish a confirmed diagnosis of [PTSD] or that a stressful experience occurred while the veteran was on active duty." While the Veteran submitted additional evidence that resulted in a May 1997 rating decision reconsidering the service connection claim, it too was denied. 

The Veteran was notified of both rating decisions and of his appellate rights, but he did not appeal either decision or submit new and material evidence within one year thereafter. There was no new and material evidence otherwise associated with the record within the appeal period. As such, the Board finds that the October 1996 rating decision at issue in this appeal became final.

The Veteran was ultimately awarded service connection for PTSD in a May 2011 rating decision, which assigned him an initial 50 percent disability rating effective from November 18, 2010, the date the Veteran filed his petition to reopen the previously denied service connection claim.

In August 2019, the Board remanded the instant appeal in order to obtain any outstanding military service records not yet associated with the Veteran's claims folder. As the May 2024 Memorandum Decision notes, VA then received a batch of at least 80 pages of the Veteran's various personnel and service treatment records in response.

The service treatment records associated with the claims folder following the Board remand do not show any indication the Veteran complained of or sought treatment for any psychiatric symptoms, or that he was diagnosed with any psychiatric disorder. As such, to the extent that any of these service medical records were not associated with the Veteran's claims folder at the time of the October 1996 rating decision, the Board finds that these records do not speak to any elements that were at issue at the time of the prior rating decision - that is, whether the Veteran had a confirmed diagnosis of PTSD or experienced any stressful events in service. Therefore, the Board finds that these service treatment records are not "relevant" for purposes of reconsideration under 38 C.F.R. § 3.156 (c)(1).

As the Board noted in its August 2022 decision, the military personnel records available at the time of the prior October 1996 rating decision already showed service in Vietnam, along with evidence of reductions in rank and court martial proceedings due to periods of AWOL. While the records obtained in response to the Board's August 2019 remand included several more documents than what was in the claims folder at the time of the October 1996 rating decision, these newly obtained military personnel records similarly do not speak to any elements that were at issue at the time of the prior rating decision and are therefore not relevant for purposes of reconsideration of the previously denied service connection claim. 

The Veteran contends that the DA Form 20 obtained in response to the Board remand for records suggest that the Veteran participated in combat because the document "shows he was engaged in a 'Counteroffensive' while in Vietnam." See May 2024 Memorandum Decision. As such, the Veteran contends that the obtained document warranted reconsideration of the service connection claim previously adjudicated in the October 1996 rating decision. 

However, a review of the Veteran's claims folder clearly shows that this referenced document - which indicates "Vietnam Counteroffensive Phase II" - was already associated with the Veteran's VA claims folder as of June 1991. See Military Personnel Record, dated June 21, 1991. Supporting this factual finding, the Veteran's claims folder includes a May 1991 Information Request which specifically stated, "please send DA Form 20." Further, a VA Form 20-3101 Request for Information in the Veteran's claims folder, date-stamped as received on June 21, 1991, reflects that the requested DA Form 20 was forwarded to VA in response to the records request stemming from his claim seeking VA benefits.

Therefore, the Board finds that the DA Form 20 that included the notation "Vietnam Counteroffensive Phase II" was already of record in the Veteran's claims folder at the time of the October 1996 rating decision. As this record already existed in the claims folder at the time of the prior decision, the Board finds that reconsideration of his previously denied service connection claim pursuant to 38 C.F.R. § 3.156(c) was not warranted. Entitlement to an earlier effective date for the award of service connection for PTSD on this basis cannot stand.

The Veteran also argues that a Certificate of Recognition from the Cantigny War Memorial Museum of the First Division that was included in the batch of military personnel records obtained in response to the Board's August 2019 remand qualifies as an official service department record that supports his claim seeking an earlier effective date for service connection. However, the Board finds that this referenced record, on its face, is not a document generated from a military service department. Instead, this document clearly shows signatures by two individuals identifying themselves as members of the Cantigny First Division Foundation, an Illinois-based charitable nonprofit organization. Thus, the Board finds that the receipt of this record does not trigger the application of 38 C.F.R. § 3.156(c) because it does not constitute an official service department record.  

For these reasons, the Board finds that the service treatment and military personnel records obtained in response to the Board's August 2019 remand have no probative value and would not have rendered a different outcome in the October 1996 final rating decision. Reconsideration of the claim under 38 C.F.R. § 3.156(c) is thus not warranted. As the evidence persuasively weighs against reconsideration, the benefit of the doubt rule does not apply, and the claim for entitlement to an effective date earlier than November 18, 2010, for the grant of service connection for PTSD must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. The motion to reverse on the basis of CUE the October 1996 rating decision that denied entitlement to service connection for PTSD.

The Veteran asserts CUE in an October 1996 rating decision that denied service connection for PTSD. In the May 2024 Memorandum Decision, the Court vacated the August 2022 Board decision and vacated the matter back to the Board for readjudication because the Board's discussion appeared to relate only to the May 1997 rating decision rather than the CUE challenge to the October 1996 rating decision which the Board had jurisdiction to address. A remand was therefore needed for the Board to analyze whether there was CUE in the October 1996 rating decision.

The Court quoted the CUE argument presented by the Veteran in his November 2014 motion: "CUE exists again in Rating Decision, 10/18/1996, denying SC PTSD for reason, 'Current medical evidence fails to establish confirmed diagnosis of PTSD or that a stressful experience occurred while veteran was on active duty.'" The November 2018 CUE motion went on to indicate that medical evidence of record at the time included records showing the Veteran was diagnosed with PTSD. 

Legal criteria

Previous determinations on which an action was predicated, including decisions regarding increased evaluations, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a).

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 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. See, e.g., Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997).

To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions then in extant at the time were incorrectly applied; and (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); see, e.g., Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001).

Simply to claim CUE on the basis that previous adjudication 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." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44.

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. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). 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. Id. at 442.

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. McDonough, 142 S. Ct. 1953 (2022); 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. Id.; Smith v. West, 11 Vet. App. 134, 37-38 (1998); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (1995).

Analysis

As detailed above, the Board finds that the October 1996 rating decision the Veteran is attempting to challenge based on CUE became final. 38 U.S.C. § 7105, 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103.

The Board also finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claim.

The October 1996 rating decision denied service connection for PTSD, basing its decision on the fact that the medical evidence of record "fails to establish a confirmed diagnosis of [PTSD] or that a stressful experience occurred while the veteran was on active duty."

At the time of the October 1996 rating decision, medical evidence of record included VA and private medical records indicating the Veteran was diagnosed with PTSD. However, at the time of the October 1996 rating decision, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 and 4.126 (1997). In this regard, the diagnosis of PTSD must be in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1980) (DSM-3).

In this regard, the Veteran's arguments alleging CUE in the adjudication of the October 1996 rating decision have amounted to a disagreement with the findings reached by the prior rating board. However, the Board reiterates that a disagreement as to how the facts were weighed or evaluated in a prior decision are among three examples specifically identified in VA regulations that are not CUE. See 38 C.F.R. §§ 3.105 (a)(1)(vi), 20.1403(d).

To the extent that the Veteran's statements amount to an argument that the RO should have undertaken additional evidentiary development, the Board notes that such errors do not constitute CUE. Indeed, it is well established that allegations that VA failed in its duty to assist are, as a matter of law, insufficient to form a basis for a claim of CUE. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Stated another way, any breach by VA of its duty to assist, cannot form a basis for a claim of clear and unmistakable error because such a breach creates only an incomplete record rather than an incorrect one. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Crippen, 9 Vet. App. at 424.

Furthermore, an allegation that expresses disagreement as to how the facts were weighed or evaluated cannot form the basis of a successful revision. Canady v. Nicholson, 20 Vet. App. 393, 402-03 (2006), citing Szemraj v. Principi, 357 F.3d. 1370, 1376 (Fed. Cir. 2004); Livesay v. Principi, 15 Vet. App. 165, 173 (2001).

In Canady, the Court explained, however, such allegations are not properly dismissed as pleading errors when the request for revision otherwise meets the requirements of a properly pled request for revision, as it does here. Rather, a request for revision based on such CUE theory is to be denied on the merits because such purported error cannot constitute CUE. Canady, 20 Vet. App. at 402-03 (2006).

In the April 2015 Notice of Disagreement, the Veteran also argued CUE was committed because the prior rating board did not properly apply VA regulations regarding the combat presumption. However, the Veteran does not explain in this statement how the revision of this alleged error would manifestly have changed the outcome of the October 1996 rating decision in light of the fact that the prior denial was also based on a finding that the Veteran did not have a confirmed diagnosis of PTSD. As such, the Board finds that this allegation of error is not properly pled.

In sum, the Board concludes following a review of the arguments presented in support of the CUE motion and the record at the time of the October 1996 rating decision that the evidence does not support a finding that there was an undebatable error in the October 1996 rating decision which, had it not been made, would have manifestly changed the outcome of the decision to deny entitlement to service connection for PTSD at the time it was made.

As CUE has not been demonstrated, the Veteran's claim seeking reversal of the October 1996 rating decision denying entitlement to service connection for PTSD on the basis of CUE must be denied.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Komperda, 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.