Citation Nr: 18132366
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 18-34 146


DATE:	September 6, 2018
ORDER
Revision of the August 26, 2011 Board decision which denied service connection for posttraumatic stress disorder (PTSD) is denied.  
FINDING OF FACT
The August 26, 2011, Board decision was supported by the evidence then of record and it is not shown that the applicable statutory and regulatory provisions were incorrectly applied.  
CONCLUSION OF LAW
The August 2011 Board decision, which denied service connection for PTSD, is not clearly and unmistakably erroneous; revision of that decision is not warranted.  38 U.S.C. § 7111 (2012); 38 C.F.R. § 20.1403 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1966 to February 1967. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder is addressed in a separate decision.  
The August 26, 2011, Board decision which denied service connection for posttraumatic stress disorder (PTSD) did not contain clear and unmistakable error (CUE).
The Veteran contends that the service treatment and military psychiatric records relied upon by the Board in its August 2011 Board decision contain inaccuracies which affected the outcome of the Board’s decision.  The Board brought this motion to determine whether the August 2011 Board decision contained CUE such that the prior outcome must be reversed.  38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1407.  
CUE 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. 38 C.F.R.             § 20.1403(a).  A final Board decision may be revised or reversed on the grounds of CUE by the Board on its own motion, or upon request of a moving party at any time after the decision is made. 38 U.S.C. §§ 5109A (a), 7111(a) and (c).
Revision of a decision on the grounds of CUE is warranted only when there has been an error in the adjudication of the claim that, 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. See, e.g., 38 C.F.R. § 20.1403 (c) (pertaining to CUE in Board decisions). 
The following are examples of situations that are not CUE: (1) a new medical diagnosis that corrects an earlier diagnosis considered in the decision; (2) the Secretary’s failure to fulfill the duty to assist; and (3) a disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403 (d). Moreover, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the decision challenged, there has been a change in interpretation of the statute or regulation. 38 C.F.R. § 20.1403 (e).
A review of the record reflects that the Veteran did not appeal the August 2011 Board decision; accordingly, it became final. See 38 C.F.R. § 20.1100 (a). There are two exceptions to the rule of finality of VA decisions, i.e., challenges based on CUE in a prior, final decision (38 U.S.C. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C. § 5108). See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002).  The Veteran’s appeal to reopen the prior denial of service connection for a PTSD will be addressed in a separate decision.  
The benefit of the doubt provisions of 38 U.S.C. § 5107 (b) are inapplicable in CUE. See 38 C.F.R. § 20.1411 (a). In fact, the moving party bears the burden of presenting specific allegations of error that would amount to CUE. Thus, for a moving party to make a successful CUE showing is an extremely difficult burden.
In September 2017, the Veteran testified in a videoconference hearing before the undersigned.  He provided new information regarding his experience in service; however, this evidence cannot form the basis of clear and unmistakable error.  The Veteran alleges that the November 1966 psychiatric records and STRs relied upon in the August 2011 Board decision are inaccurate as they contain information and history regarding another person who is not the Veteran.  Specifically, the Veteran testified that the records relied upon in the August 2011 Board decision contain an inaccurate military ID number, date of birth, physical descriptors and familial history which does not belong to the Veteran.  
The focus of this review is the Veteran’s service treatment records and his personnel file.  A review of the service treatment records shows that on occasion, the incorrect birthdate was listed on treatment records; however, on those occasions, the Veteran’s name and military ID number were properly recorded.  When these records are read in context with the other medical records which contain properly identified birthdates, it is clear that these occasional mistakes are just that-improperly transcribed information for this Veteran and no other.  These were the records that the Board relied upon in the August 2011 decision that found that the Veteran did not have a psychiatric disorder, to include PTSD, that was related to his military service, including a verified in-service stressor.  The Board acknowledged that there were inconsistencies in the record, but found that there was evidence of behavioral problems before the date of the alleged assault.  His stressor account of military sexual trauma was deemed as not credible at that time.  While the Board decision of August 2011 did not specifically address the alleged mistakes regarding the various physical descriptors, and familial relationships, the Board recognized and addressed the inconsistencies in the record and found that those inconsistencies were errors in transcription.  Based upon the evidence available to the adjudicators at the time of the August 2011 decision, the Board now finds that the Veteran’s allegations of error that do not rise to the level of CUE.  The Veteran’s new statements amount to a disagreement with how the facts were weighed or evaluated.


 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision.  The Board may also choose to remand an issue or issues to the local VA office for additional development.   If the Board did this in your case, then a "Remand" section follows the "Order."  However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision.  The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.”

If you are satisfied with the outcome of your appeal, you do not need to do anything.  Your local VA office will implement the Board’s decision.  However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: 

•	Appeal to the United States Court of Appeals for Veterans Claims (Court)
•	File with the Board a motion for reconsideration of this decision
•	File with the Board a motion to vacate this decision 
•	File with the Board a motion for revision of this decision based on clear and unmistakable error. 

Although it would not affect this BVA decision, you may choose to also: 

•	Reopen your claim at the local VA office by submitting new and material evidence. 

There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office.  Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts.  If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. 

How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court.  If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court.  As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court.  You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time.  Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty.  If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. 

How do I appeal to the United States Court of Appeals for Veterans Claims?  Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court.  You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. 

How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal.  It is important that your letter be as specific as possible.  A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice.  If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered.  Issues not clearly identified will not be considered.  Send your letter to: 

Litigation Support Branch
Board of Veterans' Appeals
P.O. Box 27063
Washington, DC 20038

VA FORM
DEC 2016	 4597	Page 1	CONTINUED ON NEXT PAGE
 
Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time.  However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. 

How do I file a motion to vacate?  You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal.  See 38 C.F.R. 20.904.  For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested.  You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence.  Send this motion to the address on the previous page for the Litigation Support Branch, at the Board.  Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time.  However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error?  You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE).  Send this motion to the address on the previous page for the Litigation Support Branch, at the Board.  You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once.  You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion.  See discussion on representation below.  Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. 

How do I reopen my claim?  You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim.  However, to be successful in reopening your claim, you must submit new and material evidence to that office.  See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes.  You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you.  An accredited representative of a recognized service organization may represent you free of charge.  VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA.  An accredited representative works for the service organization and knows how to prepare and present claims.  You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/.  You can also choose to be represented by a private attorney or by an "agent."  (An agent is a person who is not a lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov.  The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants.  You may also request this information by writing directly to the Court.  Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678.

Do I have to pay an attorney or agent to represent me?  An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007.  See 38 U.S.C. 5904; 38 C.F.R. 14.636.  If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision.  See 38 C.F.R. 14.636(c)(2). 

The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court.  VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. 

Fee for VA home and small business loan cases:  An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan.  See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). 

Filing of Fee Agreements:  If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If  the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3).

The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See
38 C.F.R. 14.636(i); 14.637(d).



VA FORM
DEC 2016 	 4597	Page 2	SUPERSEDES VA FORM 4597, APR 2015, 
  WHICH WILL NOT BE USED

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