Citation Nr: 0006325 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 96-22 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES Entitlement to an effective date prior to May 14, 1993, for a grant of service connection for post-traumatic stress disorder (PTSD) with elements of psychosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from May 1960 to February 1964. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The appellant filed a claim of service connection for a psychiatric disorder in September 1971; service connection was denied by rating determination in November 1971, and he was notified thereof in a letter that month from the RO. 3. He filed applications to reopen his claim of service connection for a psychiatric disorder in September 1979 and May 1989, but these were denied on the basis of a lack of new and material evidence. 4. In May 1993, the veteran again filed to reopen his claim and this resulted in the development of new and material evidence and a grant of service connection on that basis in a rating determination in October 1995. A 100 percent rating was assigned, effective May 14, 1993, the date of receipt of the veteran's petition to reopen his claim. 5. The November 1971 rating decision that denied service connection for a psychiatric disorder applied the correct law to the facts as they were then known, and did not involve an undebatable error. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than May 14, 1993, for service connection for PTSD are not met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.102, 3.105, 3.400 (1999). 2. The rating decision of November 1971, which denied service connection for a psychiatric disorder, did not contain CUE. 38 C.F.R. § 3.105(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran filed a formal claim for service connection for a psychiatric disorder in September 1971. The service medical records (SMRs) showed that the veteran was diagnosed as having paranoid personality, manifested by immature and impulsive behavior. This was held to be not in the line of duty and as existing prior to service. The RO denied service connection for a psychiatric disorder in a rating decision in November 1971. The basis for that decision was that the veteran's personality condition was not a disability resulting from disease or injury in service. The appellant was notified of the RO's denial that same month. He did not respond. VA records also reflect that the veteran filed for and received VA education benefits for education training. Specifically, beginning in September 1971 and running through the mid 1970s, the veteran was accepted as an undergraduate student by the University of San Francisco and the Golden Gate Baptist Theological Seminary and obtained a degree in theology. In September 1979 and May 1989, the veteran filed to reopen his claim, but due to the lack of new and material evidence, his claim was not reopened. Specifically, in an attempt to reopen his claim in 1979, the veteran submitted VA outpatient treatment records dated in 1978 and 1979 reflecting treatment for various complaints, but there was no diagnosis of a chronic psychiatric disorder, and the RO denied the claim to reopen upon rating determination in February 1980. As to the attempt to reopen the claim in 1989, the RO sent the veteran a letter dated in June 1989 in which he was told of the need to submit new and material evidence in order to have his claim reopened. It was pointed out that a medical record which described his disability as it was at the current time, was not considered to be material to the issue of service connection. The veteran's attempt to reopen his claim for service connection in May 1993 resulted in the development of new and material evidence and a grant of service connection on that basis upon rating determination in October 1995. This new and material evidence included the initial diagnosis of PTSD upon VA psychiatric evaluations in January 1995 and an addendum in October 1995. The effective date of May 14, 1993, was assigned because that was the date on which the reopened claim was received. In support of the veteran's contentions, he has submitted numerous statements by Richard D. King, M.D., dated from 1995 through 1997 in which the physician asserts that the veteran was totally disabled and unable to pursue his claim or respond to notices or time limits due to psychiatric impairment in 1971, at the time of original denial of service connection for a psychiatric disorder. Also of record is a statement by L. S. Kimbrough, M.D., dated in October 1997, in which it was reported that the veteran was a medical patient of the physician's from 1974 through 1990. The examiner states that the veteran was clearly paranoid and grandiose during this period of time. The physician noted that the veteran was being treated from 1987 through 1990 for hypertension that was aggravated by depression and stress symptoms associated with PTSD. It is opined that the veteran was so dysfunctional during the time from 1987 through 1989, that he was totally dependent upon his wife for basic care. He was medically incapable of handling his business affairs. Also of record are numerous statements submitted in support of the veteran's claim. These statements attest to the fact that the veteran was homeless in the early 1970s. Additionally, it was noted that he was bitter and hostile. Also of record are articles pertaining to PTSD and on the subject of survivor syndrome. At a personal hearing, in March 1999, the veteran provided testimony in support of his claim. The gist of his contentions has already been summarized above. Earlier Effective Date Analysis Initially, in view of the evidence of record, including the veteran's evidentiary assertions that must be presumed to be true for purposes of determining whether his claim is well grounded, the Board finds that this claim is plausible and thus, well grounded within the meaning of 38 C.F.R. § 5107 (1998); King v. Brown, 5 Vet. App. 19 (1993). The Board also finds that all relevant evidence has been obtained and that the duty to assist the claimant is satisfied. In the RO's October 1995 decision, it was determined that new and material evidence had been submitted to reopen a previously denied claim of service connection for a psychiatric disorder. In the same decision, service connection was granted for PTSD. The effective date of the grant of service connection for PTSD was established as of May 14, 1993, because that was the date the RO determined that the veteran had reopened his claim. Under the applicable criteria, the effective date of an award of disability compensation based on an original claim for direct service connection or a claim reopened after final disallowance shall be the date following separation from active service or the date entitlement arose if the claims is received within one year after separation from service; otherwise, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1999). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance, shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (1999). The effective date of award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160 (e) shall be the date of receipt of the claim or the date entitlement arose whichever is later. 38 C.F.R. § 3.400(r) (1999). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of CUE. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.105(a) (1999). Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues. 38 C.F.R. § 3.109 (1999). The veteran contends that his award should be made retroactive to 1971 when he initially filed his claim. It is argued that his psychiatric disorder was misdiagnosed during service. This argument will be addressed in the CUE analysis. Addressed immediately below will be the contentions that he never received the notice of denial in November 1971, and that he has been totally disabled an unable to pursue his claim or respond to notices or time limits due to the impairment caused by his psychiatric disability. A review of the claims file indicates that the notice of the 1971 denial was mailed to his correct home address of record; there is no indication that it was returned as undeliverable. The principles of administrative regularity dictate that it be presumed that the notification sent to the veteran was delivered by the post office in the ordinary course of business absent clear evidence to the contrary. Saylock v. Derwinski, 3 Vet. App. 394 (1992). The mere assertion by the veteran that he did not receive that notification does not constitute the 'clear evidence" necessary to rebut the presumption. See Ashley v. Derwinski, 2 Vet. App. 307 (1992). With respect to the argument that the veteran was rendered unable to respond to the notice of the denial of his claim due to the severity of his psychiatric disorder at the time, the Board has considered the physicians' and lay statements of record in support of this contention. It is noted, however, that neither physician reported treating the veteran at the time in question, in 1971. Further, the record reflects that the veteran was not mentally impaired to the degree where he could not file for VA education benefits as evidenced by the fact that he filed for and received such benefits as he earned a degree in theology during the period in question. Such a fact does not support the contention that the veteran was mentally unstable to the degree that he was unable to respond to the 1971 denial notification. Nor does it support the lay statements that he was homeless in 1971 and without a home address. Nor does it present a convincing case for consideration of a discretionary extension of the one-year time limit for expression of disagreement. Under the provisions of 38 C.F.R. § 3.109(b), the Board may, for good cause, extend the time for filing a NOD. The grant of such an extension is discretionary. See Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). Given the veteran's ability to pursue other claims, and to also pursue a course of college education, the Board finds that he was not so disabled as to be incapable of responding to the RO's 1971 rating decision. Therefore, the Board declines to grant the veteran an extension of time in which to file a notice of disagreement with the 1971 decision. The effective date of an award of service connection based on new and material evidence following an earlier denial is the date of receipt of the claim or date entitlement arose, whichever is later. Since the RO has granted benefits as of the date the veteran filed his petition to reopen his claim after diagnosis of a chronic psychiatric disorder, it has already assigned the earliest possible effective date for the grant of such benefits. Hence, the Board concludes that an effective date earlier than May 14, 1993, for a grant of service connection for PTSD is not warranted. Clear and Unmistakable Error Analysis The Court has established a three-pronged test, each of which must be met before clear and unmistakable error is established: (1) ...the correct facts, as they were known at the time, were not before the adjudicator (i.e. more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be "undebatable" and of the sort "which had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE [clear and unmistakable error] must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992). In Caffrey v. Brown, 6 Vet. App. 377 (1994), the majority of the court held that failure on the part of VA to comply with its duty to assist veterans with the development of their claims could never constitute clear and unmistakable error. The Court reached this conclusion on the basis that such a failure creates only an incomplete record, not one which is inaccurate. Caffrey, 6 Vet. App. at 383. More recently, the United States Court of Appeals for the Federal Circuit has held that in order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). As an initial step a claimant asserting clear and unmistakable error must specify the error. It is not enough to merely assert that there was clear and unmistakable error, to make broad-brush allegations of such error, or to assert that the evidence was improperly weighed and evaluated. Rather, the claim must be raised with some degree of specificity. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In this case the veteran has asserted, in essence that the RO misinterpreted the evidence by failing to recognize that he actually had an acquired psychiatric disability in service. This contention is merely a disagreement as to how the RO weighed the evidence. A dispute as to how the evidence was weighed cannot constitute CUE. Baldwin v. West, 13 Vet. App. 1 (1999). The record shows that at the time of the 1971 rating decision there was no evidence of a current acquired psychiatric disability that had its onset in service. Accordingly, the Board finds that RO's decision denying service connection was in accordance with the law and evidence as it then existed. Additional Considerations Even if it were conceded that the RO's 1971 decision were not final, because of non-receipt of the rating decision, or the Board were to grant an extension in the time for filing an NOD under 38 C.F.R. § 3.109(b), those facts could not serve to afford the veteran an earlier effective date. The claim upon which the 1971 rating was based, was submitted more than one year after service. Therefore an award of service connection based on that claim would be the latter of the date of claim or the date entitlement arose. Entitlement did not arise until Dr. King's January 1995 statement providing a diagnosis of PTSD due in part to stressors experienced in service. Prior to that time, no medical professional had provided a nexus between any current psychiatric disability and service. Therefore, the veteran's theories as to the non-finality of the 1971 decision could not serve as the basis for a grant of service connection earlier than May 14, 1993. ORDER The assignment of an effective date earlier than May 14, 1993, for a grant of service connection for PTSD is denied. Mark D. Hindin Member, Board of Veterans' Appeals