ptsd 2010 - Bva Cue For Ptsd Back To 1982

[carlie]

2/16/2010

BVA Decision grants an effective date back to Oct. 1982 for PTSD

38 CFR 3.156©

http://www4.va.gov/vetapp10/files1/1004548.txt

Citation Nr: 1004548

Decision Date: 01/29/10 Archive Date: 02/16/10

DOCKET NO. 08-10 060A ) DATE

)

)

THE ISSUE

Whether a June 23, 2004, decision of the Board of Veterans'

Appeals (Board) denying entitlement to an effective date

earlier than June 6, 2000, for the grant of service

connection for posttraumatic stress disorder (PTSD) should

be revised or reversed based on clear and unmistakable error

(CUE).

REPRESENTATION

Moving party represented by: Joseph R. Moore, Attorney at

Law

ATTORNEY FOR THE BOARD

M. Riley, Associate Counsel

INTRODUCTION

The moving party (hereinafter referred to as "the Veteran")

served on active duty from June 1971 to August 1973. This

matter is before the Board in response to an April 2008

motion alleging CUE in a June 23, 2004, Board decision,

which, in pertinent part, determined that an effective date

earlier than June 6, 2000, was not warranted for the grant

of service connection for PTSD.

FINDINGS OF FACT

1. The June 2004 Board decision denied an effective date

prior to June 6, 2000, for the grant of service connection

for PTSD.

2. The statutory or regulatory provisions then extant in

June 2004 were not correctly applied by the Board, and the

failure to apply those laws and regulations effected a

result that would have been manifestly different but for the

error.

CONCLUSION OF LAW

The June 23, 2004 Board decision's failure to consider the

provisions of 38 C.F.R. § 3.156© (2003) was clear and

unmistakable error; but for the error, an earlier effective

date of October 18, 1982, was warranted for the grant of

service connection for PTSD. 38 U.S.C.A. § 7111 (West

2002); 38 C.F.R. § 3.156©, 3.400(q)(2) (2003); 38 C.F.R.

§ 20.1403 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes

VA's duty to notify and assist claimants in substantiating a

claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,

5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§

3.102, 3.156(a), 3.159, 3.326(a) (2009). The Court has held

that the VCAA is not applicable to motions for revision of a

Board decision on the grounds of CUE. Livesay v. Principi,

15 Vet. App. 165 (2001).

Any party to a Board decision can make a motion to have the

decision revised or reversed on the grounds of CUE. 38

U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400(a),

20.1401(b) (2009).

Motions for review of prior Board decisions on the grounds

of CUE are adjudicated pursuant to the Rules of Practice of

the Board, found at 38 C.F.R. Part 20. Rule 1403, found at

38 C.F.R. § 20.1403, relates to what constitutes CUE and

what does not, and provides that: clear and unmistakable

error 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.

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. 38 C.F.R. § 20.1403(a).

A finding of CUE in a prior Board decision must be based on

the record and the law that existed when that decision was

made. 38 C.F.R. § 20.1403(b).

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 C.F.R. § 20.1403©.

Rule 1403 offers the following examples of situations that

are not clear and unmistakable error. (1) Changed

diagnosis. A new medical diagnosis that "corrects" an

earlier diagnosis considered in a Board decision. (2) Duty

to assist. The Secretary's failure to fulfill the duty to

assist. (3) Evaluation of evidence. A disagreement as to

how the facts were weighed or evaluated. 38 C.F.R. §

20.1403(d).

If the evidence establishes CUE, an undebateable, outcome-

determinative error, the prior decision must be reversed or

revised, and the decision constituting reversal or revision

has the same effect as if the decision had been made on the

date of the prior decision. 38 U.S.C.A. § 7111.

In a decision dated June 23, 2004, the Board determined that

an effective date earlier than June 6, 2000, was not

warranted for the grant of service connection for PTSD. The

Board noted that the Veteran was initially denied service

connection for PTSD in an October 1988 Board decision.

Thereafter, he attempted to reopen his claim in 1992 and

1998, but was denied in rating decisions issued by the

Regional Office (RO) in Baltimore, Maryland, in September

1992 and January 1999. As the Veteran did not appeal either

denial of his claim, the Board found that the 1992 and 1999

rating decisions became final. 38 U.S.C.A. § 7105 (West

2002); 38 C.F.R. §§ 20.302, 20.1103 (2003).

The Veteran filed another claim to reopen on June 6, 2000

and was granted entitlement to service connection for PTSD

in a January 2002 rating decision, with an effective date of

June 6, 2000. The Board concluded that the since the

September 1992 and January 1999 rating decisions were final,

an effective date earlier than June 6, 2000, was not

appropriate based on the 1992 and 1998 claims to reopen.

In addition, the record did not establish that a claim to

reopen had been received in the period between the January

1999 rating decision denying the claim to reopen and the

June 6, 2000, application to reopen.

In April 2008 the Veteran filed a motion for revision of the

Board's June 23, 2004, decision that complied with the

requirements for a valid motion of CUE 38 C.F.R.

§ 20.1403(a) (2009). The Veteran argued that the Board

committed CUE when it did not consider whether an earlier

effective date was warranted under the provisions of 38

C.F.R. § 3.156© (2003), which authorized an effective date

as early as the date of the original claim if a disability

award was based on new and material evidence consisting of

supplemental service reports or misplaced official service

department records. The Veteran argued that the RO's

January 2002 rating decision reopened and granted his claim

for service connection for PTSD based on additional records

submitted by the Veteran that included original service

department records. Therefore, the failure of the Board to

consider an earlier effective date under 38 C.F.R.

§ 3.156© in June 2004 was CUE.

As noted above, a finding of CUE in a prior Board decision

must be based on the record and the law that existed when

that decision was made. 38 C.F.R. § 20.1403(b). With

respect to 38 C.F.R. § 3.156©, the Board acknowledges that

effective September 6, 2006, the definition of new and

material evidence as it pertains to service department

records was amended and expanded.

The version of 38 C.F.R. § 3.156© in effect at the time of

the Board's June 2004 decision, together with 38 C.F.R.

§ 3.400(q)(2), established that the effective date of an

award could relate back to the date of the original claim or

date entitlement arose when new and material evidence

included supplemental reports from the service department or

official service department records that had been misplaced.

38 C.F.R. §§ 3.156©, 3.400(q)(2) (2003).

The June 2005 proposal to amend 38 C.F.R. § 3.156© stated

that § 3.156© suggested that reconsideration of a claim

may occur only if the service department records "presumably

have been misplaced and have now been located." New and

Material Evidence, 70 Fed.Reg. 35,388 (proposed June, 20,

2005) (codified at 38 C.F.R. pt. 3). The proposal to amend

also noted that in practice, VA did not limit its

reconsideration to "misplaced" service department records.

VA intended the reference to misplaced records as an example

of the type of service department records that may have been

unavailable and the proposed revision to § 3.156© would

remove this ambiguity and reflect current practices. Id.

In Vigil v. Peake, 22 Vet. App. 63 (2008), the Court

determined that it was appropriate to interpret the pre-

amended version of 38 C.F.R. § 3.156© in accordance with

the clarifying statements contained in the Secretary's

proposed rule. Vigil, 22 Vet. App. at 65 (2008).

Therefore, although 38 C.F.R. § 3.156© (2003) was amended

subsequent to the Board's June 2004 decision, the Court and

the June 2005 proposal make clear that the interpretation of

the regulation was not altered. See 38 C.F.R. § 20.1403(e)

(2009). Hence, in determining whether the June 2004 Board

decision contains CUE, the Board will not limit its

consideration to whether the grant of service connection was

based on receipt of only supplemental service records or

misplaced official service records, but will instead

consider whether any official service records were the basis

for the award of service connection.

The January 2002 rating decision granting service connection

for PTSD noted that the Veteran's claim had been previously

denied because the evidence did not establish his diagnoses

of PTSD were supported by verified stressors. The decision

to reopen and grant the claim was based on additional

evidence submitted by the Veteran including medical records,

buddy statements, and copies of unit histories for the 377th

Air Force Base Wing dated from July to December 1972. These

unit histories established that the Bien Hoa Air Base in the

Republic of Vietnam was subjected to significant rocket and

mortar attacks during the time of the Veteran's Vietnam

service with the 377th Air Force.

The unit histories submitted by the Veteran constitute

official service department records. In Vigil, the Court

held that unit records provided to the RO by the U.S. Armed

Services Center for Research of Unit Records (USASCRUR)

constituted official service department records. Although

the records in this case were submitted by the Veteran

himself, they are the type of records that are typically

provided by the U.S. Army and Joint Services Records

Research Center (JSRRC) (formerly USASCRUR). In fact, in

June 1985, the RO asked that the U.S. Army and Joint

Services Environmental Support Group (ESG), to furnish

copies of applicable unit histories as part of a PTSD

research request. Instead of providing copies of the unit

histories as requested, the ESG summed up the results of

their research in a July 1985 letter. The ESG characterized

the rocket and mortar attacks against Bien Hoa Air Base

during the time of the Veteran's service as occurring on

average once every six weeks and involving a relatively

small number of shells.

Upon review of the unit histories submitted by the Veteran,

the RO found in their January 2002 rating decision that the

magnitude and measure of the rocket and mortar attacks

closely approximated those reported by the Veteran. The RO

then determined that satisfactory evidence of the Veteran's

claimed stressors had been submitted and reopened and

granted the claim. Hence, the award of service connection

for PTSD in the January 2002 rating decision was predicated

on the official service department records, i.e. unit

histories, submitted by the Veteran.

As the award of service connection for PTSD in the January

2002 rating decision was based on official service

department records, the provisions of 38 C.F.R. § 3.156©

(2003) were for application and should have been considered

by the Board in its June 2004 decision denying an earlier

effective date for the grant of service connection.

Therefore, the regulatory provisions extant at the time of

the June 2004 Board decision were incorrectly applied. 38

C.F.R. § 20.1403(a).

In addition, the Board's failure to consider 38 C.F.R.

§ 3.156© was outcome determinative as the decision would

have been manifestly different if the law was correctly

applied. As noted above, 38 C.F.R. § 3.156©(2003),

together with 3.400(q)(2), provided that the effective date

of an award of service connection based on new and material

evidence consisting of service department records, was the

later of the date entitlement arose or the date of receipt

of the earlier claim.

The Veteran's initial claim for service connection for PTSD

was received on October 18, 1982. The medical evidence of

record establishes that the earliest evidence of PTSD dates

from October 15, 1982, when the Veteran complained of

symptoms associated with classic PTSD based on his combat

experiences in Vietnam during a psychiatric examination at

the Martinsburg VA Medical Center (VAMC). The correct

effective date for the grant of service connection for PTSD

is therefore October 18, 1982, the date his initial claim

was received and several days after entitlement to PTSD

arose.

With application of 38 C.F.R. § 3.156©, an earlier

effective date of October 18, 1982, is warranted for the

grant of service connection for PTSD. CUE has been found in

the June 23, 2004, Board decision insofar that it denied

entitlement to an effective date earlier than June 6, 2000,

for the grant of service connection for PTSD.

ORDER

There was CUE in the June 23, 2004, Board decision; that

decision is amended to the extent that an earlier effective

date of October 18, 1982, is granted for the award of

service connection for PTSD.

____________________________________________

Mary Gallagher

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[LarryJ]

And.........without the veteran, himself, having supplied the "probative" necessary records, he still woulda been up the creek without the flat thing.

ALWAYS, ALWAYS, Claim your claim, stake it out, treat it like your baby!

[LarryJ]

Oh, and I wonder just exactly how MUCH the check came to........................................ :D !

[Berta]

Yippee Yahoo-

I wonder if they will declare this vet incompetent now so they can stave off the retro payment as long as they can.

This is a Fabulous find Carlie!!!!!

[akwidow]

I like this find as well. Good job, Carlie.

I can see them lowballing the guy though, to minimize the retro.

[jbasser]

At least it is a reversal and not another remand.

Good Fund Carlie

J