Citation Nr: 18123979
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-31 131A
DATE:	August 3, 2018
ORDER
The motion alleging clear and unmistakable error (CUE) in the June 2010 rating decision and seeking an effective date of November 16, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD) is granted.
The claim of entitlement to an effective date earlier than October 31, 2013 for the grant of service connection for PTSD is dismissed as moot.
FINDING OF FACT
1.  The June 2010 adjudication of the Veteran’s claim of entitlement to service connection for PTSD contained clear and unmistakable error (CUE) in that the correct facts were not before the adjudicator and it is undebatable that, had the error not occurred, the claim would have been granted.
2. The Veteran filed a claim on November 16, 2009, seeking entitlement to service connection for PTSD which, but for CUE, would have been granted in June 2010.
CONCLUSIONS OF LAW
1. The RO’s June 2010 decision which failed to grant entitlement to service connection for PTSD was clearly and unmistakably erroneous. 38 U.S.C. §§ 5109A, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.105 (2017).
2. An effective date of November 16, 2009 is assigned for the award of service connection for PTSD.  38 C.F.R. § 3.400.
3.  The claim of entitlement to an effective date earlier than October 31, 2013 for the grant of service connection for PTSD is dismissed as moot, because there remains no matter in controversy after foregoing grant of the motion alleging CUE in the June 2010 rating decision.  38 U.S.C. §§ 1155, 7104(a), 7105(d)(5) (West 2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from February 1963 to February 1967.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.
The Veteran testified before the undersigned in a July 2017 hearing held at the RO.  The record contains a transcript of the hearing.
At the July 2017 Board hearing, the Veteran set forth his argument regarding entitlement to an earlier effective date for service connection for PTSD and also raised a second theory of entitlement to an earlier effective date.  Specifically, the Veteran, through his representatives, argued that there is clear and unmistakable error (CUE) in the June 2010 rating decision that initially denied entitlement to service connection for PTSD.  Because the CUE claim has been extensively argued and the Veteran will not be prejudiced by the Board’s disposition of the claim, the issue has been added to the pending appeal. 
1. Whether there is CUE in the June 2010 rating decision denying service connection for PTSD
The Veteran claims that the RO committed CUE in its June 2010 rating decision denying entitlement to service connection for PTSD.  His claim of CUE is based on the theory that the correct facts, as they were known at the time, were not before the adjudicator and, if the adjudicator had considered the known facts, the claim would have been granted.  Specifically, he notes that the June 2010 denial was based on the adjudicator’s erroneous conclusion that the Veteran’s service personnel records did not establish participation in combat during the Veteran’s service in Vietnam.
Clear and unmistakable error (CUE) is “a very specific and rare kind of error.  It 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.  Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has established a three-prong test to determine whether there is CUE in an RO decision: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory-regulatory provisions extant at that time were not correctly applied; (2) the error must be “undebatable” and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); 38 C.F.R. § 20.1403; Russell v. Principi, 3 Vet. App. 310, 314 (1992) (en banc).  VA’s failure to comply with the duty to assist cannot constitute CUE.  See 38 C.F.R. § 20.1403(d)(2); see also Cook v. Principi, 318 F.3d 1334, 1344–45 (Fed. Cir. 2002) (“[A] breach of the duty to assist cannot constitute CUE.”).  Likewise, an allegation that the adjudicator improperly weighted or evaluated evidence cannot constitute CUE.  See 38 C.F.R. § 20.1403(d)(3); see also Damrel, 6 Vet. App. at 246.
The June 2010 rating decision denied the claim based, in significant part, on its finding that the Veteran’s DD-214 and service personnel records listed the Veteran’s “military occupation specialty…as Motor Vehicle Operator” and failed to document any “individual decoration as evidence of exposure to combat-related stressors.”  In fact, while the Veteran’s military occupation specialty was Motor Vehicle Operator at the time of his discharge (as reflected in the DD-214) after he had transferred back to the United States, his service personnel records available to the adjudicator conclusively established participation in combat.  For example, a prominent entry in the service personnel records documents that the Veteran “[p]articipated in operations against Viet Cong” in Hue Phu Bai during his service as a “Fire Team Leader” in Vietnam.  See May 1965 Combat History Record.
While the rating decision indicates that the service personnel records were available, the adjudicator did not have before him or her (whether because of a partially missing file or some other reason) the well-documented fact that the Veteran participated in combat as a fire team leader.  The correct facts as known in June 2010 were not before the adjudicator when the Veteran’s claim was denied.
The next element of a CUE claim is whether the error is undebatable.  The fact of the Veteran’s participation in combat is undebatable as is the fact that the information existed at the time of the June 2010 rating decision.  However, this prong also requires that the error, had it not been made, “would have manifestly changed the outcome.”  A brief discussion of the legal standards and evidence supporting service connection is warranted.
In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
There are also special provisions relating to service connection for PTSD, including a diagnosis in accordance with the DSM-IV (as the law stated at the time) and a stressor.  38 C.F.R. § 3.304(f).  Here, the in-service event (stressor) was established by the documentation of the Veteran’s participation in combat and his statements (in his filings and to medical professionals) regarding the life-threatening experiences he had consistent with that documentation.  See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2).
The Veteran was diagnosed with PTSD by a VA psychologist in September 2008. See September 2008 VA Mental Health Note; 38 C.F.R. §§ 3.304(f) and 4.125(a) (2010).  Moreover, that diagnosis was explicitly linked to his combat experiences in Vietnam.  Therefore, all elements (stressor, current diagnosis, and nexus between the two) of the Veteran’s PTSD claim were clearly and unmistakably established by the evidence of record at the time of the June 2010 rating decision and, applying the law as it existed at the time, reasonable minds could not differ.
In short, there was CUE in the June 2010 rating decision in failing to grant service connection effective the date of the November 16, 2009, claim.  See November 2009 VA Form 21-526; June 2010 Rating Decision (noting a November 16, 2009 claim); July 2017 Board Hearing Tr. at 3 (requesting a November 2009 effective date).
The motion alleging CUE in the June 2010 rating decision and seeking an effective date of November 16, 2009, for the grant of service connection for PTSD is granted in full. 
2. Entitlement to an effective date earlier than October 31, 2013 for the grant of service connection for PTSD
The Veteran has argued that he is entitled to an effective date in November 2009 because, in the July 2014 rating decision granting his PTSD claim, the RO relied on service personnel records which existed but were not associated with the claims file at the time of the June 2010 denial.  See July 2017 Board Hearing Tr. at 3; 38 C.F.R. § 3.156(c)(1) (“Notwithstanding any other section in this part, 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, notwithstanding paragraph (a) of this section.”).  The Veteran has also raised other issues, such as the finality of the June 2010 rating decision and lack of proper notice of that decision to permit a timely notice of disagreement.
Because the Board finds that the original June 2010 rating decision contained CUE and the relief the Veteran seeks has been granted under that theory, the separate claim of entitlement to an earlier effective date for service connection for PTSD is rendered moot.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  This dismissal is without prejudice to the Veteran’s right to appeal the rating decision implementing the grant of CUE, including the assignment of a disability rating during the newly relevant time period (2009 to 2013).
 
MICHELLE L. KANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Kerry Hubers, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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