Citation Nr: 0003962	
Decision Date: 02/15/00    Archive Date: 02/23/00

DOCKET NO.  98-10 106A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUE

Entitlement to an effective date earlier than June 10, 1997, 
for a grant of service connection for post-traumatic stress 
disorder (PTSD).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESSES AT HEARINGS ON APPEAL

Appellant and his therapist


ATTORNEY FOR THE BOARD

K. S. Hughes, Associate Counsel


INTRODUCTION

The veteran served on active duty from July 1968 to February 
1970.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 1997 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Seattle, Washington.

In December 1999, the veteran testified before a member of 
the Board at a videoconference hearing.  Correspondence in 
the claims file and testimony at the hearing indicate that 
the veteran accepted that hearing in lieu of an "in-person" 
hearing before a Board member.  See 38 C.F.R. § 20.700(e) 
(1999). 


FINDINGS OF FACT

1. All available relevant evidence necessary for an equitable 
disposition of the appeal has been obtained by the RO.

2. The veteran filed a claim for service connection for PTSD 
in March 1992, service connection was denied by a July 
1992 rating decision, and he was notified of this 
determination by an August 1992 letter from the RO.

3. The July 1992 rating decision did not contain clear and 
unmistakable error.

4. He filed an application to reopen the claim of service 
connection for PTSD in June 1997 and service connection 
was granted by a November 1997 rating decision, effective 
from June 10, 1997.

5. The record does not show communication from the veteran 
between August 1992 and June 1997 that might demonstrate 
an earlier date of receipt of a claim.


CONCLUSIONS OF LAW

An effective date earlier than June 10, 1997, for the award 
of service connection for PTSD is not warranted.  38 U.S.C.A. 
§§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.158, 3.400 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The claim of entitlement to an effective date earlier than 
June 10, 1997, for service connection of PTSD is well 
grounded within the meaning of 38 U.S.C.A. § 5107(a); i.e., 
it is not inherently implausible.  See generally Proscelle v. 
Derwinski, 2 Vet. App. 629, 632 (1992).  The Board finds that 
VA has satisfied its statutory obligation to assist the 
veteran in the development of facts pertinent to the claim.  
38 U.S.C.A. § 5107(a).  On appellate review, the Board sees 
no areas in which further development may be fruitful.

By a July 1992 rating decision, the RO denied the veteran's 
claim of service connection for PTSD.  The RO informed him of 
this determination by letter dated in August 1992.  Decisions 
of the RO are final if an appellant does not appeal such 
determination within one year.  38 U.S.C.A. § 7105(c); 38 
C.F.R. § 3.104(a), 20.302(a).  The claims file does not show 
receipt of any other communication from the veteran until a 
June 1997 statement, filed almost five years later, sought to 
reopen the claim of service connection for PTSD.  In a 
November 1997 rating decision granting service connection for 
PTSD, the RO assigned an effective date of June 10, 1997, the 
date of the veteran's reopened claim.  

Except as otherwise provided, the effective date of an 
evaluation and award of compensation based on a claim 
reopened after final disallowance will be the date of receipt 
of the claim or the date entitlement arose, whichever is the 
later.  
38 U.S.C.A. § 5110(a), (i); 38 C.F.R. § 3.400, (h)(2), (q), 
(r); see Link v. West, 
12 Vet. App. 39 (1998) (effective date of a reopened claim is 
fixed in accordance with the facts but is not earlier than 
the date of receipt of the claim).  "Date of receipt" means 
"the date on which a claim, information or evidence was 
received in [VA]".  38 C.F.R. § 3.1(r); see 38 C.F.R. § 
3.108, 3.153, 3.201; Wells v. Derwinski, 3 Vet. App. 307 
(1992).

The applicable statutory and regulatory provisions require 
that VA look to all communications from the appellant which 
may be interpreted as applications or claims - formal and 
informal - for benefits.  In particular, VA is required to 
identify and act on informal claims for benefits.  38 
U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a), see 
Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).  An 
informal claim must identify the benefit sought.  38 C.F.R. § 
3.155(a).

The record clearly documents receipt of an informal claim for 
reopening in June 1997.  This date of receipt matches the 
definition of "date of receipt" provided at 38 C.F.R. § 
3.1(r) ("the date on which a claim, information or evidence 
was received in [VA]").  

The Board acknowledges the argument advanced by the veteran's 
accredited representative that, inasmuch as the medical 
evidence shows that the veteran's first PTSD treatment was at 
a Vet Center on March 11, 1997, and he filed his claim within 
one year from this date, an earlier effective date of March 
11, 1997, is warranted.  However, in assigning an effective 
date of March 11, 1997, based on a Vet Center clinical 
record, it appears that the representative is applying 38 
C.F.R. § 3.400(o), which permits an effective date up to one 
year before the date of receipt of the claim for an increased 
evaluation.  In contrast, this case involved the reopening of 
a denial of service connection; thus, 38 C.F.R. § 3.400(r) 
applies as to the assignment of the effective date.

Otherwise, the veteran alleges that the Vet Center records 
comprise an informal claim and that the effective date should 
be from the date of the first Vet Center record in March 1997 
since VA had constructive notice of these records under Bell 
v. Derwinski, 2 Vet. App. 611 (1992).  

VA is required to identify and act on informal claims for 
benefits.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.155 (1999).  VA 
is held to have constructive notice of documents generated by 
VA, even if the documents have not been made part of the 
record in a claim for benefits. Bell, 2 Vet. App. at 613.  
The United States Court of Appeals for Veterans Claims 
(Court) has recognized that Vet Center records are created by 
VA so as to fall under the constructive notice provisions of 
Bell.  See Dunn v. West, 11 Vet. App. 462, 466 (1998).    

The Board recognizes that the date of a VA outpatient or 
hospital examination or the date of hospital admission to a 
VA or uniformed services hospital, or the date of the 
veteran's admission to a non-VA hospital, where the veteran 
was maintained at VA expense, will be accepted as the date of 
receipt of a claim under certain circumstances.  See 38 
C.F.R. § 3.157(b)(1) (1999).  However, the cited regulation 
is predicated on claims for increase involving a prior 
allowance of a claim for pension or compensation, 
disallowance of a formal claim for compensation for the 
reason that the service-connected disability is not 
compensable in degree, prior disallowance of a claim for 
compensation or pension by a retired member of a uniformed 
service due to receipt of retired pay, or prior disallowance 
of pension on the basis that the disability was not 
permanently disabling.  38 C.F.R. §§ 3.157(b) (1999).  In 
this case, a claim for increase is not at issue and there was 
no adjudication of the type required by 38 C.F.R. § 3.157(b).  
Thus, in the absence of meeting the requirements of 38 C.F.R. 
§ 3.157(b), application of 38 C.F.R. § 3.157(b)(1) is not 
appropriate.

Further, there is no evidence in the record, prior to the 
receipt of the reopened claim on June 10, 1997, that 
indicates any intent on the part of the veteran to apply for 
benefits, or in any way specifically identifies "the benefit 
sought," i.e., compensation for PTSD, as required by 38 
C.F.R. § 3.155(a).  Following a review of the Vet Center 
records, the Board is unable to conclude that an intent to 
apply for one or more benefits under the laws administered by 
VA is demonstrated.  The records refer to treatment, and do 
not identify that a claim for service connection for PTSD was 
sought by the veteran.  The Court has held that the mere 
presence of a disability does not establish an intent on the 
part of the veteran to seek service connection for that 
condition.  See KL v. Brown, 5 Vet. App. 205 (1993).  Thus, 
the Board finds that the Vet Center records do not constitute 
an informal claim for compensation for service connection for 
PTSD on this basis.  

The important fact here is the absence of a claim filed prior 
to June 10, 1997, and subsequent to the expiration of the 
one-year period after issuance of the RO's August 1992 letter 
notifying him of the July 1992 rating action.  Under the 
regulatory provisions, an effective date earlier than June 
10, 1997, is not warranted.

Alternatively, an earlier effective date might be available 
if clear and unmistakable error is determined under the 
provisions of 38 C.F.R. § 3.105.  Link v. West, 12 Vet. App. 
39 (1998).  In that case, the effective date is the date from 
which benefits would have been payable if the corrected 
decision had been made on the date of the reversed decision.  
38 C.F.R. § 3.400(k).

Previous determinations that are final and binding will be 
accepted as correct in the absence of clear and unmistakable 
error.  38 C.F.R. § 3.105(a).  Error in the prior 
adjudication of a claim exists when, for example, the correct 
facts, as they were known at the time, were not before the 
adjudicator, or the statutory or regulatory provisions extant 
at the time were incorrectly applied.  Russell v. Principi, 3 
Vet. App. 310, 313 (1992).  Clear and unmistakable error is 
the type of error which, had it not been made, would have 
manifestly changed the outcome at the time it was made; it is 
an error which is undebateable, 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, 3 Vet. App. at 313-314.

The Court noted in Fugo v. Brown, 6 Vet. App. 40, 43-44 
(1993) that there is "a presumption of validity to otherwise 
final decisions, and where such decisions are collaterally 
attacked, and a claim is undoubtedly a collateral attack, the 
presumption is even stronger."  Id. at 44.  When a claim of 
clear and unmistakable error is stated, "[i]t must always be 
remembered 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.  Thus even where 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, 6 
Vet. App. at 43-44 (emphasis in original) (citations 
omitted).

The Court has consistently stressed the rigorous nature of 
the concept of clear and unmistakable error.  Oppenheimer v. 
Derwinski, 1 Vet. App. 370, 372 (1991) ("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."); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991) 
("Clear and unmistakable error requires that error, 
otherwise prejudicial, . . . must appear undebatably.").  

In order for a claim of clear and unmistakable error to be 
reasonably raised, "the claimant must provide some degree of 
specificity as to what the alleged error is and, unless it is 
the kind of error that, if true, would be [clear and 
unmistakable error] on its face, 'persuasive reasons must be 
given as to why the result would have been manifestly 
different but for the alleged error.'"  Eddy v. Brown, 9 
Vet. App. 52, 57 (1996); (quoting Fugo v. Brown, 6 Vet. App. 
40, 44 (1993).

In order to determine whether the July 1992, rating decision 
contained clear and unmistakable error, the Board must review 
the evidence that was before the RO at that time.  38 C.F.R. 
§ 3.104(a).  "A determination that there was a 'clear and 
unmistakable error' must be based on the record and the law 
that existed at the time of the prior . . . decision."  
Russell, 3 Vet. App. at 314.  In other words, the Board 
cannot apply the benefit of hindsight to any evaluation of 
the RO's actions in July 1992 in determining whether clear 
and unmistakable error existed.

The facts as they were known at the time of the July 1992 
rating decision are easily summarized.  In March 1992, the 
appellant filed a formal application seeking service 
connection for PTSD and stating that he had been treated by 
Drs. Ang and Adatia as well as in the "mental ward" at 
Puget Sound Hospital.  The veteran indicated that PTSD was 
the disability that was treated by Dr. Adatia.  In an April 
1992 letter, the RO informed the veteran of the need to 
submit private treatment records.  

Of record at that time was a copy of his DD Form 214, Report 
of Transfer or Discharge, showing that his military 
occupational specialty was "11D40 ARMOR INTEL SPEC."  The 
form also noted receipt of the Vietnam Service and Vietnam 
Campaign Medals, the National Defense Service Medal, Army 
Commendation Medal, and the Combat Infantryman Badge.  

Copies of the veteran's service medical records showed no 
complaints of or treatment for psychiatric impairment.

In a May 1992 statement, the veteran reported that he was 
experiencing difficulty at work as a truck driver because he 
kept imagining that he was running over something or someone 
and had to double back to check.  He further reported that he 
developed a fear of fire.  The veteran stated that he sought 
treatment at a stress clinic and was prescribed Prozac.  

In May 1992, the veteran underwent a VA general medical 
examination which included an impression of possible PTSD and 
obsessive compulsive disorder.  A PTSD examination was also 
conducted and consisted of a Social and Industrial Survey and 
a VA psychiatric evaluation.  The psychiatric examiner noted 
that he did not have a copy of the "Social Service Survey" 
for review, thus, many details were not available to him.  He 
did note that he had a Social Survey brief.  It was noted 
that the veteran did not experience particularly strong 
reoccurring and intrusive recollections, recurring stressing 
dreams, flashbacks, avoidance, psychogenic amnesia, 
diminished activities, feelings of detachment or estrangement 
from others, or a sense of a foreshortened future.  It was 
further noted that the veteran did not have trouble with 
irritability or outbursts of anger since he quit drinking and 
he experienced no difficulty with concentration or 
hypervigilence.  The examiner noted that the veteran did 
experience occasional startle response as well as trouble 
falling asleep because he was a "strong thinker" and had 
"trouble turning his mind or 'computer' off at night."  The 
examiner commented that, conceivably, there could be some 
connection back to Vietnam.  The diagnoses were alcohol 
dependence in remission and obsessive-compulsive disorder.

The RO denied the claim of service connection for PTSD in 
July 1992, on the basis that PTSD was not found on VA 
examination.  An August 1992 letter from the RO, addressed to 
the veteran at his most recent address of record, informed 
him that his claim of service connection for PTSD was denied.

In a June 1998 letter to the RO, J. P. Slattery, Ph.D., a 
psychologist who treated the veteran at the Vet Center from 
March to July 1997, stated that it was his understanding that 
the veteran was claiming an earlier effective date of March 
26, 1992, for his service-connected PTSD based on the 
argument that a clear and unmistakable error had occurred at 
the time of his May 1992 VA examination.  Dr. Slattery stated 
that it was his belief that the veteran's "PTSD appeared to 
be the likely underlying cause of his developing severe 
obsessive-compulsive disorder in 1991-1992."  He indicated 
that this belief was strengthened by further contact with the 
veteran, from the time of the veteran's intake in March 1997 
until Dr. Slattery was transferred to another Vet Center in 
late July 1997.  Dr. Slattery noted that "possible post 
traumatic stress disorder" was found upon General Medicine 
examination in May 1992 and concluded that, "given the 
record of symptoms already noted, [the veteran's] profound 
avoidance symptoms, and his combat record, I believe that a 
psychiatrist would have found clear and debilitating PTSD in 
[the veteran]."  

During his September 1998 personal hearing at the RO, the 
veteran's psychologist, Dr. Slattery, testified that review 
of Dr. Elrod's 1992 VA examination of the veteran shows that 
he was experiencing symptoms of PTSD at that time.  
Transcript (Tr.) at 10-11. Additionally, the veteran 
testified that he was now experiencing panic attacks and 
difficulty with concentration, symptoms which he also 
experienced in 1992.  Tr. at 19.

In a September 1998 letter to the RO, the veteran claimed 
that, with respect to his 1992 VA examination, the failure to 
conclude that there was a connection between his obsessive 
compulsive disorder and PTSD or to refer him for further 
evaluation in order to make such a determination resulted in 
clear and unmistakable error.  The veteran further stated 
that he is "convinced that there was enough evidence at hand 
to establish the connection" and "more extensive evaluation 
would have connected his disabling obsessive compulsive 
disorder symptoms and his PTSD to Vietnam."

During the veteran's December 1999 videoconference hearing 
before the undersigned Member of the Board, his accredited 
representative pointed out that Dr. Elrod's 1992 VA 
examination of the veteran was inadequate because a copy of a 
social and industrial survey as well as the veteran's general 
medical examination was not available for the physician's 
review in connection with this examination.  Videoconference 
(VC) Tr. at 3.  In this regard, the representative stated 
that the general medical examiner noted "possible PTSD 
symptoms" and Dr. Elrod did not have this information during 
his examination.  Id.  Dr. Slattery testified that he had the 
equivalent of ten years of experience with veteran's PTSD 
during the prior 18 years.  VC Tr. at 4.  Dr. Slattery stated 
that, because Dr. Elrod did not have the veteran's "social 
service survey" for review, his examination of the veteran 
was inadequate because he underestimated the degree of the 
veteran's exposure to trauma and did not probe it.  VC Tr. at 
5-6.  Dr. Slattery further testified that Dr. Elrod's 
examination was inadequate because he failed to render an 
opinion as to why the veteran's obsessive compulsive disorder 
began in 1991.  VC Tr. at 7.  Finally, Dr. Slattery noted 
that Dr. Elrod acknowledged that he was not sure whether 
there was a connection between the veteran's symptoms and 
Vietnam and, therefore, Dr. Elrod should have deferred his 
diagnosis until he obtained additional information.  VC Tr. 
at 8.  Additionally, the veteran testified that his life got 
worse from 1991 until 1997; however, he first learned that he 
had PTSD in 1997 when it was first diagnosed.  VC Tr. at 11-
12.

The applicable law and regulations provide that service 
connection may be granted for disability resulting from 
disease or injury incurred in or aggravated by active duty.  
38 U.S.C.A. § 1110.  Where a veteran served continuously for 
90 days or more during a period of war or during peacetime 
service after December 31, 1946, and a psychosis became 
manifest to a degree of 10 percent within one year from the 
date of termination of such service, such disease is presumed 
to have been incurred in service, even though there is no 
evidence of such disease during the period of service.  This 
presumption may be rebutted by affirmative evidence to the 
contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 
3.307, 3.309.  These regulations are substantially the same 
as those in effect at the time of the RO's July 1992 rating 
decision denying entitlement to service connection for PTSD.  
The veteran does not allege any error of law in the rating 
decision.  

The veteran contends that there was CUE in the July 1992 
rating decision in that the May 1992 VA examination for PTSD 
was inadequate.  Specifically, it is argued that copies of 
the veteran's prior evaluations were not reviewed by the 
examiner and, thus, he was unable to conduct a thorough 
examination.  It is also argued that the examiner failed to 
make an informed diagnosis regarding the connection between 
the veteran's symptoms and his service in Vietnam.

With regard to the above, what the veteran is in essence 
arguing is that his current psychiatric symptomatology was 
present at the time of the VA examination in May 1992, that 
is, that the May 1992 VA examination contained clear and 
unmistakable error in failing to diagnose his psychiatric 
impairment as PTSD due to his service in Vietnam. 

In this regard, the Court has held that new "or recently 
developed facts or changes in the law subsequent to the 
original adjudication may provide grounds for reopening a 
case or for a de novo review but they do not provide a basis 
for revising a finally decided case."  Russell at 313.  In 
Russell, the Court held that "a new medical diagnosis that 
'corrects' an earlier diagnosis ruled on by previous 
adjudicators is the kind of 'error' that could not be 
considered an error in the original adjudication.  Russell at 
314 citing Henry v. Derwinski, 2 Vet. App. 88, 90 (1992).  
Although the subsequent evidence may result in a change of 
the outcome, so as to grant service connection, the Court has 
stressed that it is the evidence in the claims file at the 
time of the disputed decision that must be analyzed in 
determining error.  Thus, any evidence submitted subsequent 
to the rating decision is irrelevant to the immediate 
discussion.  In Kronberg v. Brown, 4 Vet. App. 399, 401 
(1993), the Court held that an adjudication was not 
arbitrary, capricious, or an abuse of discretion "[g]iven the 
state of medicine extant" at the time of the original 
adjudication.  Similarly, in Porter v. Brown, 5 Vet. App. 
233, 237 (1993), the Court held that even though the state of 
medical knowledge in general and the medical opinions 
specifically concerning the facts in that case had changed 
after the original adjudication, those changes could not be a 
basis for revising an earlier decision.

The veteran's accredited representative has pointed out that, 
at the time of his original claim in March 1992, the veteran 
had reported that he had received psychiatric treatment.  
However, the RO took the appropriate steps necessary of 
informing the veteran of the need to submit private medical 
records.  38 U.S.C.A. § 5103.  See Sutton v. Brown, 9 Vet. 
App. 553, 570 (1996).  Initially, the veteran does not claim 
that these records reflected treatment for PTSD since the 
first diagnosis was in 1997.  In any event, an incomplete 
record is not clearly and unmistakably erroneous.  Caffrey v. 
Brown, 6 Vet. App. 377, 383-384 (1994).  Moreover, an alleged 
failure in the duty to assist by the RO may never form the 
basis of a valid claim of clear and unmistakable error 
because it essentially is based upon evidence that was not of 
record at the time of the earlier rating decision.  Id.; see 
Elkins v. Brown, 8 Vet. App. 391, 396 (1995).

The medical evidence of record at the time of the July 1992 
rating decision did not include findings of PTSD.  Thus, the 
Board concludes that the July 1992 rating decision was a 
permissible and appropriate exercise of rating judgment; the 
RO's findings did not lack support in the competent evidence 
on file at that time.  The veteran has not presented evidence 
of error of either fact or law which, 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.  Under the 
relevant and controlling case law cited above, the veteran's 
allegations are therefore insufficient to give rise to a 
valid claim of clear and unmistakable error.  Fugo, at 43-44.  
Accordingly, the July 1992 rating decision was not clearly 
and unmistakably erroneous.  38 C.F.R. § 3.105(a).

In sum, the Board finds no basis for an effective date 
earlier than June 10, 1997, for the grant of service 
connection for PTSD.  


ORDER

An effective date earlier than June 10, 1997, for the grant 
of service connection for PTSD is denied.



		
	M. SABULSKY
	Member, Board of Veterans' Appeals