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Sc Granted For Anxiety Reaction By Cue - 22 Yrs Retro


carlie

Question

Just go to the URL for the full decision

Hope this helps a vet !

carlie

http://www.va.gov/vetapp95/files4/9517775.txt

2. Entitlement to an earlier effective date for service

connection for post-traumatic stress disorder.

The appellant is also seeking an earlier effective date for

service connection for PTSD, based on his contention that

clear and unmistakable error existed in the April 15, 1970

rating decision which denied service connection for anxiety

reaction. In particular, he contends that the VA rating

board ignored evidence contained in his May 1969 separation

physical examination and the report of the March 1970 VA

psychiatric examination.

The unappealed April 1970 rating decision is final. 38

U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302,

20.1103 (1994). Such final decision may, however, be

reversed or amended where evidence establishes that clear

and unmistakable error existed. 38 C.F.R. § 3.105(a)

(1994).

The Board wishes to emphasize that the Unites States Court

of Veterans Appeals has consistently stressed the rigorous

nature of the concept of clear and unmistakable error.

"Clear and unmistakable error is an administrative failure

to apply the correct statutory and regulatory provisions to

the correct and relevant facts: it is not mere

misinterpretation of facts." Oppenheimer v. Derwinski, 1

Vet.App. 370, 372 (1991). "'Clear and unmistakable error'

requires that error, otherwise prejudicial,...must appear

undebatably." Akins v. Derwinski, 1 Vet.App. 228, 231

(1991). Clear and unmistakable errors "are errors that are

undebatable, so that it can be said that reasonable minds

could only conclude that the original decision was fatally

flawed at the time it was made." Russell v. Principi, 3

Vet.App. 310, 313-4 (1992). "It must always be remembered

that CUE is a very specific and rare kind of 'error'." Fugo

v. Brown, 6 Vet.App. 40, 43 (1993).

In order to determine whether the April 1970 rating decision

contained clear and unmistakable error, we review the

evidence which was before the rating board "at that time".

38 C.F.R. § 3.104(a) (1994). "A determination that there

was 'clear and unmistakable error' must be based on the

record that existed at the time of the prior...decision."

Russell, supra. In other words, we cannot apply the benefit

of hindsight to our evaluation of the rating board's actions

in 1970 in determining whether clear and unmistakable error

existed.

The procedural history of the appellant's claim and the

medical evidence which was of record in April 1970 have been

reviewed above. In brief, the appellant was wounded twice

in combat; he answered affirmatively to the question

concerning frequent or terrifying nightmares in the report

of medical history he completed in connection with his May

1969 separation physical examination; he filed a claim for

service connection for "nervousness" in October 1969,

shortly after he left military service; and in January 1970

he reported nightmares, insomnia and difficulty

concentrating. Most significantly, the March 1970

psychiatric examination contained a diagnosis of anxiety

reaction, which the examiner related to "his combat fatigue

which he developed in Viet Nam."

In denying the appellant's claim for service connection for

an acquired psychiatric disorder, the rating board

acknowledged that anxiety disorder had been diagnosed in

March 1970. The rating board, however, made no mention of

the examiner's conclusion that the appelant's anxiety

disorder was directly related to his combat experiences in

Vietnam. Rather, the rating board decision found that

"[t]his condition was not demonstrated in service or noted

on discharge. There is no presumptive period for a

psychoneurosis." In so stating, the rating board ignored

the appellant's May 1969 report of medical history, while he

was still in service; his January 1970 statement; the VA

psychiatric examiner's report in March 1970; and the very

close temporal relationship between the appellant's combat

experiences, particularly the wounds he sustained in October

1968, and the onset of his psychiatric symptomatology in

early 1969, particularly his nightmares concerning Vietnam.

In addition, the rating board ignored to provisions of 38

C.F.R. § 3.303(d), which provides that service connection

may be granted for a disease diagnosed after discharge when

all of the evidence establishes that the disease was

incurred in service. That provision existed in essentially

unchanged form in April 1970.

After having carefully reviewed the evidence which was

before the rating board in April 1970, the Board believes

that clear and unmistakable error existed in the

April 15, 1970 rating decision. It is clear from the

evidence which was then at hand that the appellant had a

diagnosed psychiatric disorder which began during military

service. The rating board ignored evidence favorable to the

appellant and also ignored the pertinent VA regulation, 38

C.F.R. § 3.303(d).

In general, the effective date of an award based on an

original claim for benefits is based on the filing of a

claim for such benefits. 38 U.S.C.A. § 5110(a) (West 1991);

38 C.F.R. § 3.151 (1994); Wells v. Derwinski, 3 Vet.App.

307, 308 (1992). Benefits are generally awarded based on

the date of receipt of the claim. However, if, as in this

case, a claim for service connection is received within one

year after separation from service, service connection is

granted from the day following separation from active

service. 38 C.F.R. § 3.400 (1994). Accordingly, service

connection is granted effective from July 10, 1969.

The only remaining matter for the Board's consideration is

the disorder for which service connection is to be granted

effective July 10, 1969. Although the appellant's present

diagnosis is PTSD, and although he seeks an earlier

effective date for PTSD, the Board has concluded that

service connection should be granted for anxiety disorder

from July 10, 1969 to February 25, 1991. PTSD was not

diagnosed in March 1970, and indeed did not then exist as a

recognized psychiatric diagnosis. The change in diagnosis

to PTSD in 1991, although consistent with VA regulations,

cannot serve to change the diagnosis of anxiety reaction

made in March 1970. 38 C.F.R. §§ 4.13, 4.128 (1994).

ORDER

An increased disability rating for post-traumatic stress

disorder is denied.

Service connection for anxiety reaction is granted,

effective from July 10, 1969 to February 25, 1991.

Edited by carlie (see edit history)
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WOW!!! another great find from you Carlie- GREAT WORK!

I see the decision was in 1995,haven't read it all but somehow he subverted the Constructive Notice Rule in Bell V Derwinski on claims prior to July 1992.

CUEs are not impossible to succeed in- but still ---difficult to win.

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