Citation Nr: 0006726 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-19 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than March 8, 1994 for the grant of service connection for chronic obstructive pulmonary disease, including on the basis of clear and unmistakable error (CUE) in prior rating decisions. 2. Entitlement to an effective date earlier than January 8, 1986 for the grant of service connection for post-traumatic stress disorder, including on the basis of clear and unmistakable error (CUE) in prior rating decisions. 3. Entitlement to an effective date earlier than January 8, 1986 for the grant of service connection for tinnitus, including on the basis of clear and unmistakable error (CUE) in prior rating decisions. 4. Entitlement to an effective date earlier than March 8, 1994 for the grant of a 100 percent evaluation for service- connected post-traumatic stress disorder, including on the basis of clear and unmistakable error (CUE) in prior rating decisions. REPRESENTATION Appellant represented by: John C. Sims, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran served on active duty from June 1941 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a December 1997 rating decision, inter alia, the RO granted service connection for chronic obstructive pulmonary disease, and assigned a 60 percent evaluation, effective from March 8, 1994. The RO also granted increased evaluations to 100 percent for service-connected post-traumatic stress disorder, and to 10 percent for service-connected tinnitus, both effective from March 8, 1994. Following the February 1998 notice of disagreement and issuance of a statement of the case in September 1998, the appellant filed a substantive appeal in October 1998, regarding the March 8, 1994 effective date, that included an assertion that service connection for post-traumatic stress disorder, chronic obstructive pulmonary disease, and tinnitus should have been granted from 1945, and that a 100 percent rating for post-traumatic stress disorder should be assigned prior to March 8, 1994. In July 1999, the appellant appeared at a hearing before the Board in Washington D.C., and the case is now ready for appellate review. The Board notes in passing that at the July 1999 hearing, the appellant withdrew a claim of entitlement to service connection for nicotine dependence or addiction that had been previously perfected for appeal. Consequently, that matter will not be considered on appeal. The Board notes further, that during the development of the current appeal, the appellant had asserted claims of entitlement to service connection for loss of vision, hearing loss, and chronic fatigue syndrome. In March 1996, the RO issued a statement of the case that included those issues. In April 1996, the appellant's attorney asserted a "notice of disagreement" with the determination set out in the March 1996 statement of the case as to those specific issues. In a February 1998 statement, however, the appellant's attorney asserted that "although [they] are not in agreement with the list of non-service related conditions, it is something [the veteran] can live with as of today." The Board construes the statements made by the veteran and his attorney as limiting the appeal to the issues cited in the first page of this decision. Finally, it is noted that the matters of whether there was clear and unmistakable error (CUE) in a June 1988 decision of the Board to deny the claim of entitlement to service connection for a chronic pulmonary disorder, and whether there was CUE in a July 1990 decision of the Board to deny the claims of entitlement to effective dates prior to January 8, 1996, for the grant of service connection of post- traumatic stress disorder and tinnitus are addressed in a separate decision. FINDINGS OF FACT 1. A claim for service connection for post-traumatic stress disorder, tinnitus and/or COPD was not filed prior to the issuance of the RO's September 1945, September 1984, and December 1984 rating decisions. 2. The appellant filed for correction of his military records after January 8, 1986. 3. The initial claim for service connection for tinnitus was filed in April 1986. 4. The initial claim for service connection for post- traumatic stress disorder was filed in September 1986. 5. In a February 1987 rating decision, service connection was granted for post-traumatic stress disorder, and tinnitus, effective from January 8, 1986. 6. In a July 1990 Board decision, the appellant's claims of entitlement to earlier effective dates for a 30 percent evaluation for post-traumatic stress disorder, and a 10 percent evaluation for tinnitus were denied, based upon findings that the appellant's initial claims for those disorders were submitted in 1986, and that the extent and severity of the manifestations of his post-traumatic stress disorder did not warrant an increased evaluation for that disorder. That Board decision was affirmed by the Court of Veterans Appeals (now U.S. Court of Appeals for Veterans Claims) (hereinafter, Court) in a January 1992 Memorandum Decision. 7. In June 1986, the appellant's military records were corrected to reflect that he was honorably discharged on September 7, 1945 by reason of a medical disability diagnosed in an August 1945 medical survey as post infective asthenia resulting from repeated attacks of malaria. The August 1945 medical survey had been contained in the claims file and considered in all rating decisions following the appellant's separation from service. 8. Service connection was denied for bronchial asthma with pneumonia in a September 1984 rating decision; service connection was denied for bronchial asthma in a May 1986 rating decision; those decisions were affirmed in a June 1988 Board decision that denied service connection on a de novo basis for a chronic pulmonary disorder. 9. In October 1988, the RO denied the appellant's claim of service connection for COPD. The appellant was notified of the determination in October 1988, but did not file a timely appeal. 10. The October 1988 rating decision to deny service connection for COPD was consistent with and supported by the applicable law and the evidence then of record. 11. The correction of the appellant's military records did not form the basis for the reopening and allowance of the appellant's claim for service connection for COPD in the December 1997 rating decision. 12. On March 8, 1994, the veteran filed a claim for an increase in compensation benefits in excess of the 30 percent evaluation assigned for post-traumatic stress disorder. 13. It was not factually ascertainable prior to March 8, 1994 that the symptomatology associated with the veteran's service-connected post-traumatic stress disorder exceeded that which was "more than moderate but less than rather large." There was no basis to believe that the severity of the veteran's disorder approached "considerable" prior to that time. CONCLUSIONS OF LAW 1. The October 1988 rating decision that denied service connection for COPD was not clearly and unmistakably erroneous. 38 U.S.C. § 4005 (1988); 38 C.F.R. §§ 3.104(a), 3.105(a), 3.400, 19.192 (1988). 2. The September 1984 and May 1986 rating decisions that denied service connection for bronchial asthma and pneumonia were subsumed by a June 1988 Board decision, and are not subject to challenge based on alleged CUE. 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999). 3. The February 1987 rating decision that assigned an effective date of January 8, 1986 for the grant of service connection and 30 percent evaluation for post-traumatic stress disorder, and for the grant of service connection and a 10 percent evaluation for tinnitus was subsumed by a July 1990 Board decision, and is not subject to challenge based on alleged CUE. 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999). 4. The correction of the appellant's military records in 1986 does not form the basis for the assignment of an earlier effective date for the grant of service connection for post- traumatic stress disorder, tinnitus, or COPD. 38 U.S.C.A. § 5110(i) (West 1991). 5. The criteria for an effective date prior to March 8, 1994, for a grant of a 100 rating for post-traumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110(b)(2) (West 1991); 38 C.F.R. §§ 3.400, 4.7, 4.132, Diagnostic Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The appellant filed his original application for compensation disability upon his separation from service in September 1945. His claim was expressly limited to be for service connection for malaria. Service connection for malaria was established in a September 1945 rating decision and evaluated as 50 percent disabling. In the rating decision, it was indicated that the appellant's service medical records had been reviewed and showed that "in the opinion of the Board of Medical Survey that the patient has post infection asthenia resulting from repeated attacks of malaria, and . . . his chronic fatigue state has reduced his efficiency." In a March 1947 rating decision, the evaluation of malaria was reduced to 0 percent disabling. In a statement received in June 1984, the appellant expressed a general desire to reopen a claim for an unspecified service-connected disability. The appellant's initial claim for service connection for a respiratory disorder, therein characterized as pneumonia, was received in August 1984. A claim for service connection for bronchitis was received in September 1984. Service connection for residuals of "bronchial asthma with alleged pneumonia" was denied in a September 1984 rating decision based upon a finding that pneumonia was not shown in service, and that the veteran's lung disorder was not shown to be related to service. On January 8, 1986, the appellant submitted a claim for the reevaluation of his service-connected malaria. On January 23, 1986, he submitted a statement to the effect that there were discrepancies in his military records. In February 1986, in response to that statement, the RO directed a letter to the appellant indicating that if the veteran wanted to correct the discrepancies in the military records, he should contact the service department for that purpose. In March 1986, the Department of the Navy directed a letter to the RO indicating that the appellant had made application for correction of his naval record to show that he has a physical disability that is service-connected. The initial claim for service connection for tinnitus was contained in a statement from the appellant received in April 1986. This statement also included a claim for service connection for a "lung problem secondary to a service- connected condition." In a May 1986 rating decision, service connection was denied for the claimed lung condition, characterized as bronchial asthma, and was also denied for tinnitus. In statements dated in June 1986, and August 1986, from the Head, Records Service Section of the United States Navy, by direction of the Commandant of the Marine Corps, it was noted that appropriate corrections had been made to the appellant's discharge certification, and that the appellant was honorably discharged on September 7, 1945 by reason of report of medical survey for disability, which was considered to be of permanent duration. The referenced medical survey, dated in August 1945 was attached, and showed a diagnosis of post infective asthenia, and further noted that the appellant had post infection asthenia resulting from repeated attacks of malaria and that his chronic fatigue state had reduced his efficiency and rendered him unfit for service; it was recommended that he be released from active duty. In a September 1986 hearing before a hearing officer at the RO, the appellant asserted his initial claim of service connection for post-traumatic stress disorder. In a February 1987 rating decision, service connection was granted for post-traumatic stress disorder, and evaluated as 30 percent disabling from January 8, 1986. Service connection was also granted for tinnitus, evaluated as 10 percent disabling from January 8, 1986. In a June 1988 Board decision, service connection for a chronic pulmonary disorder was denied, based upon findings that it was not shown in service; was initially documented several decades after service; and was unrelated to service- connected disabilities. In an October 1988 rating decision, a claim for service connection for chronic obstructive pulmonary disorder (COPD) was denied, as not being shown to be caused by, or aggravated by active military service. The appellant was provided notice of that decision in October 1988. Although he submitted a statement in November 1988, that was construed by the RO as notice of disagreement with other issues addressed in the October 1988 rating decision, the appellant did not file a notice of disagreement within one year of receiving notice of the denial of the claim for service connection for COPD, and that decision became final. In a July 1990 Board decision, the appellant's claims of entitlement to earlier effective dates for a 30 percent evaluation for post-traumatic stress disorder, and a 10 percent evaluation for tinnitus were denied, based upon findings that the appellant's initial claims for those disorders were submitted in 1986, and that the extent and severity of the manifestations of his post-traumatic stress disorder did not warrant an increased evaluation for that disorder. That Board decision was affirmed by the Court of Veterans Appeals (now U.S. Court of Appeals for Veterans Claims) (hereinafter, Court) in a January 1992 Memorandum Decision. On March 8, 1994, the appellant filed a claim for service connection for "lung problems caused by cigarette smoking, coral dust, chemical warfare, and falciparum malaria." On the same day, he filed a claim for an increase in the evaluation of his service-connected post-traumatic stress disorder and tinnitus. This represented the first claim for an increased evaluation for post-traumatic stress disorder since the Board addressed and denied an evaluation in excess of 30 percent in a July 1990 decision. In conjunction with his claim for an increased evaluation for service-connected post-traumatic stress disorder, the veteran submitted numerous private and VA medical records for the period between 1988 and 1995. These records showed treatment of the veteran for various disorders, but did not document the treatment of the veteran for a psychiatric disorder, including post-traumatic stress disorder. In August 1994, the veteran underwent VA psychiatric examination for the purpose of the assessment of his post- traumatic stress disorder. The diagnosis was post-traumatic stress disorder, chronic, severe. In a March 1995 rating decision, a 50 percent evaluation was assigned for post-traumatic stress disorder from March 8, 1994, based upon the August 1994 VA psychiatric examination. In a December 1997 rating decision, inter alia, the RO granted service connection for chronic obstructive pulmonary disease, and assigned a 60 percent evaluation, effective from March 8, 1994. The RO also granted increased evaluations to 100 percent for service-connected post-traumatic stress disorder, and to 10 percent for service-connected tinnitus, both effective from March 8, 1984. In February 1998, the appellant, through his attorney, filed a notice of disagreement regarding the assignment of the March 8, 1994 effective date, asserting that clear and unmistakable error (CUE) has been committed since 1945 with respect to the failure to grant service connection for post- traumatic stress disorder, chronic obstructive pulmonary disease and tinnitus. Following the issuance of a statement of the case in September 1998, the appellant filed a substantive appeal in October 1998, that included an assertion that clear and unmistakable error (CUE) has been committed since 1945 with respect to the failure to grant service connection for post- traumatic stress disorder, chronic obstructive pulmonary disease, and tinnitus prior to March 8, 1994, and the failure to assign a 100 percent rating for post-traumatic stress disorder prior to that date. In July 1999, the appellant appeared at a hearing before the Board in Washington D.C. At his hearing, the appellant testified that he was discharged from service in 1945, and that his discharge documents erroneously indicated that he had no service-related disabilities, when in reality, he had chronic fatigue syndrome, also known as battle fatigue, which is now known as post-traumatic stress disorder. The appellant further asserted that the discharge documents also failed to disclose that he suffered from asthenia at the time of discharge that was related to his service-connected malaria. The appellant's attorney argued that the chronic fatigue syndrome and asthenia should tie into his post- traumatic stress disorder and COPD, thereby demonstrating those disorders to having existed upon his separation from service in 1945. The appellant and his attorney concluded that but for the error in his discharge papers, the appellant would have been service-connected for those disorders since separation. Laws and Regulations The decision of a duly constituted rating agency . . . will be final and binding . . . based on evidence on file at that time and will not be subject to revision on the same factual basis . . .." 38 C.F.R. § 3.104(a) (1988). The only exception to this rule is when the VA has made a "clear and unmistakable error" in its decision. 38 C.F.R. § 3.105(a); see also 38 U.S.C. § 4005 (1988). Under such circumstances, the decision will be reversed or amended, and it will have the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. 38 C.F.R. § 3.105(a) (1988). If this exception does not apply, the decision is final and may be reopened only upon the presentation of "new and material evidence." A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified shall become final if an appeal is not perfected. 38 C.F.R. § 19.192 (1988). Clear and unmistakable error arises in situations where "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet. App. 310, 313 (1992). 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." Id.; see also Olson v. Brown, 5 Vet. App. 430, 433 (1993); Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). "A determination that there was '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; See Crippen v. Brown, 9 Vet. App. 412, 418 (1996); See Allin v. Brown, 6 Vet. App. 207, 214 (1994) (Because the VA Physicians' Guide for Disability Evaluation Examinations is neither a statute nor a regulation, the failure to properly apply its guidelines cannot constitute clear and unmistakable error (CUE). CUE is an administrative failure to apply the correct statutory or regulatory provisions to the correct and relevant facts. Thus, in order for CUE to exist, there must have been a failure to apply the appropriate regulations or statutes.) 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. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). The fact that medical knowledge was not advanced to its current state may not form the basis for a valid claim of clear and unmistakable error, because it is premised upon facts that were not then of record. Porter v. Brown, 5 Vet. App. 233, 235-236 (1993). The Court has further defined "clear and unmistakable error" to mean an administrative error during the adjudication of the claim; that is, the VA's failure to apply correct statutory and regulatory provisions to the correct and relevant facts. See generally Wipprecht v. Derwinski, 2 Vet. App. 131, 132 (1992); Henry v. Derwinski, 2 Vet. App. 88, 90 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). "Clear and unmistakable error" is more than a difference of opinion. 38 C.F.R. § 3.105(b). The Court has recognized that a claimant seeking to obtain retroactive benefits by proving that the VA has made a "clear and unmistakable error" has a much heavier burden than that placed upon a claimant who attempts to establish his prospective entitlement to benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991); See also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (Recognizing a claimant's "extra-heavy burden" of persuasion before the Court in a claim of clear and unmistakable error). For a claim of clear and unmistakable error to succeed, it must be shown that the RO committed an error of law or fact that would compel later reviewers to the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Elkins v. Brown, 8 Vet. App. 391, 396 (1995); See Eddy v. Brown, 9 Vet. App. 52, 57 (1996). In accordance with Title 38, United States Code, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed pursuant to the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In general, the effective date of an evaluation and award of compensation will be the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (1999). The effective date for a grant of increased rating is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within 1 year from such date, otherwise, the date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (1994). 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). Evidence received from a private physician or layperson will be accepted as a claim if the matter is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. See 38 C.F.R. § 3.157(b)(2). The date of receipt of such evidence is considered the date of claim. Id. 38 U.S.C.A. § 5110(i) (West 1991) provides that whenever any disallowed claim is reopened and thereafter allowed on the basis of new and material evidence resulting from the correction of military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record. Post-traumatic stress disorder is rated under Diagnostic Code 9411, as set forth in the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4. For the time period in question, Diagnostic Code 9411 evaluated post-traumatic stress disorder as follows: A 100 percent evaluation was assigned where attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community and where there were totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic and explosions of aggressive energy) associated with almost all daily activities resulting in profound retreat from mature behavior. A 100 percent evaluation is also contemplated that the veteran was demonstrably unable to obtain or retain employment. A 70 percent rating was assigned where the ability to establish and maintain effective or favorable relationships with people was severely impaired, and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain and retain employment. A 50 percent disability evaluation is warranted when the veteran's ability to establish and maintain effective or favorable relationships with people is considerably impaired and his psychoneurotic symptoms are of such severity and persistence that there is considerable impairment in the ability to obtain or retain employment. 38 C.F.R. Part 4, Diagnostic Code 9411. A 30 percent evaluation applied if there was definite impairment in the ability to establish or maintain effective and wholesome relationships with people; the psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1996). In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated that the term "definite" in 38 C.F.R.§ 4.132 was "qualitative," whereas the other terms were "quantitative" in character, and invited the Board to construe the term "definite" in a manner that would quantify the degree of impairment. The General Counsel concluded that the term "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptablity that is "more than moderate but less than rather large." VA O.G.C. Prec. Op. No. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A.§ 7104(c) (West 1991). Analysis The appellant claims an earlier effective date for service connection for tinnitus, post-traumatic stress disorder, and COPD, and an earlier effective date for the assignment of a 100 percent evaluation for post-traumatic stress disorder, including allegations of clear and unmistakable error (CUE) in all prior RO rating actions and Board decisions. The Board has carefully considered the applicable law and the evidence of record at the time of each of the presently challenged, unappealed rating decisions, and finds that the appellant's contentions regarding the assignment of clear and unmistakable error are without merit. With respect to his claim for entitlement to earlier effective dates for service connection for post-traumatic stress disorder and tinnitus based upon clear and unmistakable error on the part of VA, the Board cannot disregard the fact that the appellant's initial claims of service connection for those disorders were ultimately successful. Specifically, the appellant's initial claim for service connection for tinnitus was received in April 1986, while his initial claim for service connection for post- traumatic stress disorder was stated at a September 1986 hearing before the RO. Based upon those initial claims, service connection for those disorders was granted in a February 1987 rating decision, effective from January 8, 1986, thus establishing an effective date predating the appellant's initial claims. 38 C.F.R. § 3.400 (1986). Notwithstanding, the appellant and his attorney have essentially argued that there was error on the part of VA in rating decisions prior to 1986 (in particular the initial September 1945 rating decision) by VA's implicit failure to perceive a claim, and then grant service connection for post- traumatic stress disorder and tinnitus. (The only rating decisions that predated that 1986 effective date were those in September 1945, September 1984, and December 1984.) They base this allegation of error on alleged misstatements appearing in the appellant's military discharge documents. The fact remains, however, that there was no claim for service connection for post-traumatic stress disorder or tinnitus until 1986, be it formal, informal, implied, or inferred. Absent that, VA cannot assert a claim for service connection on behalf of a veteran sua sponte, and the failure to do so could never be the subject of CUE. Moreover, if it is the appellant's belief that there was an alleged failure on the part of VA to assist him in developing the record to the point where his claim would have become manifest, that too could never form the basis of a valid claim of CUE, because it essentially would be based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Secondly, the appellant has cited the provisions of 38 U.S.C.A. § 5110(i), and claimed it as a basis for an earlier effective date as to the claims on appeal. The provision regarding correction of military records is not applicable to post-traumatic stress disorder and tinnitus, however, as it refers to previously denied claims that had been reopened. In the instant case, the veteran's claims for service connection for post-traumatic stress disorder and tinnitus were granted based upon the initial claim, and not upon a reopened claim. Even if that statute could be interpreted otherwise, the evidence shows that the appellant did not make application for correction of his military records until after January 8, 1986, and would therefore not warrant an effective date earlier than the date of that application under the provisions of 38 U.S.C.A. § 5110(i). With respect to any claim of CUE in the July 1990 Board decision that had considered the issue of the effective date for the grant of service connection for post-traumatic stress disorder and tinnitus, such a claim cannot be the subject of the current appeal. It must be brought under motion to the Board in accordance with the requirements for the advancement of such a motion under the provisions of 38 C.F.R. § 20.1404 (1999). The veteran has, in fact, brought such a motion, and as previously indicated that is the subject of a separate Board decision. With respect to his claim for entitlement to an earlier effective date for service connection for COPD based upon allegations of CUE, it is noted that in June 1988, the Board had denied service connection for a chronic pulmonary disorder. The June 1988 decision was an appeal of the May 1986 denial by the RO of a claim of service connection for a lung condition, claimed to be bronchial asthma with pneumonia. Further, in that June 1988 decision, the Board specifically concluded that although service connection had been denied in September 1984 for residuals of bronchial asthma with alleged pneumonia, based on a review of the claims folder, it was appropriate to make a determination on a de novo basis on the issue. Consequently, the Board must now conclude that all RO decisions as to the pulmonary disorder issue which preceded the June 1988 Board decision were subsumed by such Board decision and are not subject to challenge based on alleged CUE. Dittrich v. West, 163 F.3d 1349 (Fed.Cir. 1998); Donovan v. West, 158 F. 3d 1377 (Fed.Cir. 1998). These include the September 1984 rating decision and the May 1986 rating decision. Essentially, the June 1988 Board decision was an expressed affirmance of those decisions. It is noted, however, that following the June 1988 Board decision, the RO issued a rating decision in October 1988, that included the denial of a claim for service connection for COPD. Since that decision post-dated the 1988 Board decision, it can be considered subject to challenge based on alleged CUE. If CUE is found in the 1988 rating action, service connection would be effective from the date the VA received the 1988 claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.105(a), 3.400(k). However, if there was no CUE in the October 1988 decision, the correct effective date is March 8, 1994, being the date the VA received the application to reopen the claim based new and material evidence. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q),(r). In order to determine whether the 1988 rating action contained clear and unmistakable error, the review of the evidence is limited to that which was before the rating board at the time of the prior decisions. 38 C.F.R. § 3.104(a) (1999); Russell, supra. In other words, the Board cannot apply the benefit of hindsight to an evaluation of the rating board's actions in 1988 in determining whether clear and unmistakable error existed. Focusing on the evidence available to the RO in 1988, and the prevailing legal authority at the time, it is readily apparent that the RO's adverse action was within the bounds of sound judgmental discretion, regardless of whether or not some adjudicators might have reached a different result. While there was some evidence favorable to the veteran, the most notable evidence against his claim was the absence of the diagnosis of a pulmonary disorder in service, and the absence of a physician's opinion relating a pulmonary disorder to service. In this regard, it is axiomatic that the medically supported relationship of a current disorder to service must be shown as a prerequisite to service connection. The RO was not free to substitute its own judgment for that of a trained physician. The veteran essentially disagrees with how the facts were weighed and evaluated by the RO in 1988, but this is insufficient to support his CUE claim. The RO's 1988 decision was not undebatably erroneous, in fact or law, and it may not be reversed under the stringent tests for CUE. The correct facts, as they were known at the time, were before the RO, and the governing law was correctly applied. Fugo 6 Vet. App. at 44, Allin v. Brown, 6 Vet. App. 207, 214 (1994). With respect to the appellant's allegations that the provisions of 38 U.S.C.A. § 5110(i) should serve as basis for an earlier effective date for the grant of service connection for COPD, it is noted that the correction of the appellant's military records had preceded the Board's June 1988 decision and was considered therein. Further, although the December 1997 rating decision that ultimately granted service connection for COPD was based upon a reopened claim, the claim was expressly allowed on the basis of reasonable doubt being accorded to the appellant in the weighing of a considerable amount of medical evidence, and not on the basis of new and material evidence resulting from the correction of military records. In fact, the evidence that led to the correction of the appellant's military records had been of record since 1945, and had indeed been considered in all rating decisions subsequent to 1945, including the Board's 1988 decision. In summary, the provision regarding correction of military records is not applicable in this case since the reopening and allowance of the appellant's claim of service connection for COPD in 1997 did not result from the correction of his military records, and therefore, an earlier effective date cannot be given on that basis. 38 U.S.C.A. § 5110(i) (West 1991). Finally, the Board need consider the veteran's claim of entitlement to an effective date earlier than March 8, 1994 for the grant of a 100 percent evaluation for service- connected post-traumatic stress disorder, including on the basis of CUE in prior rating decisions. Once again, the fact that the Board had previously considered the issue of the evaluation of post-traumatic stress disorder in its July 1990 Board decision cannot be ignored. As previously indicated, a claim of CUE in that Board decision or the February 1987 RO decision it subsumed (based upon the veteran's original claim) cannot be the subject of the current appeal. It must be brought under motion to the Board in accordance with the requirements for the advancement of such a motion under the provisions of 38 C.F.R. § 1404 (1999). The veteran has, in fact, brought such a motion, and as previously indicated, that is the subject of a separate Board decision. The next claim for an increase for post-traumatic stress disorder, namely that brought by the veteran in a statement dated March 8, 1994, resulted in the assignment of a 100 percent evaluation effective from that date of claim. Under 38 C.F.R. § 3.400(o)(2) (1994), the only way that the veteran would be entitled to an earlier effective date, is if it can be shown that the increase in disability that had occurred was factually ascertainable during the year prior to the receipt of the claim. He could then be entitled to an earlier effective date of up to the one year limit provided. However, the evidence of record fails to show treatment for, or an assessment of the veteran's post-traumatic stress disorder between 1988 and 1994. The initial assessment of that disorder following the July 1990 Board decision was in the August 1994, VA psychiatric examination that was initiated for that purpose. Consequently, the Board must find that it was not factually ascertainable prior to March 8, 1994 that the symptomatology associated with the veteran's service-connected post- traumatic stress disorder exceeded that which was "more than moderate but less than rather large," so as to warrant an evaluation in excess of the 30 percent rating that he had prior to that date, much less the 100 percent rating that he obtained after that date. The criteria for an effective date prior to March 8, 1994, for a grant of a 100 rating for post- traumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110(b)(2); 38 C.F.R. §§ 3.400, 4.7, 4.132, Diagnostic Code 9411. In conclusion, based upon the foregoing reason, the Board finds as a matter of law that the RO has assigned the correct effective date of January 8, 1986 for the grant of service connection for post-traumatic stress disorder and tinnitus, and the correct effective date of March 8, 1994 for the grant of service connection for chronic obstructive pulmonary disease and for the assignment of a 100 percent evaluation for post-traumatic stress disorder. The appeal must be denied. ORDER Entitlement to an effective date earlier than March 8, 1994 for the grant of service connection for COPD, on the basis of CUE in prior rating decisions and/or the correction of military records, is denied. Entitlement to an effective date earlier than January 8, 1986 for the grant of service connection for post-traumatic stress disorder, on the basis of CUE in prior rating decisions and/or the correction of military records, is denied. Entitlement to an effective date earlier than January 8, 1986 for the grant of service connection for tinnitus, on the basis of CUE in prior rating decisions and/or the correction of military records, is denied. Entitlement to an effective date earlier than March 8, 1994 for the grant of a 100 percent evaluation to service- connected post-traumatic stress disorder, is denied. Thomas J. Dannaher Member, Board of Veterans' Appeals