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ptsd Sc Granted For Anxiety Reaction By Cue - 22 Yrs Retro
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carlie
Just go to the URL for the full decision
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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.
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