BVA9508439 DOCKET NO. 92-05 641 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to an effective date for service connection for post-traumatic stress disorder (PTSD) with panic disorder and agoraphobia prior to January 15, 1987. 2. Whether there was clear error in the May and July 1983 rating decisions denying service connection for PTSD with panic disorder and agoraphobia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and the appellant's wife ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from January 1964 until January 1966. This matter came before the Board of Veterans' Appeals (the Board) from a November 1989 rating decision of the Anchorage, Alaska, Regional Office (RO) of the Department of Veterans Affairs (VA) which increased a 30 percent schedular rating for PTSD with panic disorder and agoraphobia, to 70 percent effective January 15, 1987, the effective date of the grant of service connection for that, his only, service-connected disorder. Subsequent to testimony of the veteran and his wife at a December 1990 RO hearing and the April 1991 decision of the presiding hearing officer, a May 1991 rating decision assigned a 100 percent schedular evaluation under 38 C.F.R. § 4.16(c) (1994) effective January 15, 1987. The veteran subsequently testified at a hearing before the Board in October 1992 and again at a RO hearing in December 1993. The case was remanded by the Board in February 1993 at which time it was noted that at the December 1990 hearing the veteran had made reference to a back disorder he felt was due to service- connected PTSD. That matter was referred to the RO. On file is a report of contact of January 1993 which reflects that in a phone conversation the veteran indicated that he had never filed a claim for an orthopedic disability. Accordingly, this matter is no longer for consideration. Also in the February 1993 remand it was indicated that the veteran had disagreed with a denial of CHAMPVA benefits of which he was notified by letters of October 21, 1991, and January 24, 1992. A Statement of the Case (SOC) on that matter was issued in February 1994 but no substantive appeal perfecting that appeal has been received. Thus, this issue is also not for appellate consideration. Lastly, the Board notes that in correspondence from the veteran dated in September 1991 he made reference to a dental disability which he felt was due to "stress and depression" from service- connected PTSD. As with the previous matter pertaining to the low back disorder, it not clear whether the veteran actually desires to claim service connection for a dental disability. Clarification of this matter is necessary and, accordingly, this matter is drawn to the attention of the RO. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran did not receive notification of the denials of service connection for PTSD in May and July 1983 and that, in any event, he should be granted an extension of the time within which to file an Notice of Disagreement (NOD) because at that time he was so impaired from service-connected PTSD that he did not comprehend and understand the VA adjudication and appellate process. It is averred that there was clear and unmistakable error (CUE) in the May and July 1983 rating denials. It is maintained that the VA did not fully investigate or evaluate the veteran's psychiatric disorder at the time of those rating decisions. It is asserted that erroneous information was either accidentally or intentionally recorded in a VA social and industrial survey in February 1983 and that a diagnosis in a private physician's statement was illegally changed by VA personnel. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an earlier effective date for service connection for PTSD and that there was no CUE in the May and July 1983 rating decisions denying service connection for PTSD. FINDINGS OF FACT 1. The veteran had active service from January 1964 until January 1966. 2. The veteran's original claim for service connection for PTSD was received on January 18, 1983. Notification of May and July 1983 rating denials of service connection for PTSD was properly mailed and no appeal was taken from those rating actions. 3. Good cause for extending the time for filing NOD as to the 1983 rating actions is not shown. 4. There was no CUE in the May and July 1983 rating decisions. 5. The veteran's application to reopen the claim for service connection for PTSD was received on January 15, 1987, the current effective date for service connection and a 100 percent schedular rating for that, his only, service-connected disorder. CONCLUSIONS OF LAW 1. An effective date of January 15, 1987, date of receipt of the application to reopen the claim for service connection for PTSD, is proper and an earlier effective date is not warranted. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a), 3.400(b)(2)(i) (1994). 2. Good cause for extension of time to file an NOD to the May and July 1983 rating denials of service connection for PTSD is not shown and there is no clear evidence that the veteran was not properly notified of those rating denials. 38 U.S.C.A. §§ 5107, 7105(b)(1) (West 1991); 38 C.F.R. § 3.109(b) (1994). 3. There was no CUE in the unappealed May and July 1983 rating denials of service connection for PTSD. 38 C.F.R. § 3.105(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Effective Date The proper effective date for an original claim for service connection under 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400(b)(2)(i) is the "[d]ay following separation from active service or date entitlement arose if claim is received within one year after separation from service; otherwise the date of receipt of claim, or date entitlement arose, whichever is later." In this case, the veteran did not file a claim within one year of service discharge. Thus, even if he had PTSD since service, as he contends and letters from a private physician suggest, the effective date for service connection for PTSD cannot antedate or precede the filing of his original claim in May 1980. However, even the May 1980 claim was not a claim for service connection for PTSD or any psychiatric disability but, rather, was for service connection for exposure to Agent Orange. As was clarified by a RO letter of December 1980, simple exposure to Agent Orange is not a disability. The veteran failed to reply to the earlier RO letter of September 1980, as requested, to specify and to provide evidence of disability or disabilities he was claiming as being the result of or due to exposure to Agent Orange. Thus, under 38 U.S.C.A. § 5103(a) (West 1991) and 38 C.F.R. § 3.158(a) (1994) that claim was considered to be abandoned. Generally see Morris v. Derwinski, 1 Vet.App. 260, 264 and 266 (1991). The veteran's original claim for service connection for PTSD was received on January 18, 1983. The United States Court of Veterans Appeals (the Court) has held that as to an original claim for service connection the effective date is governed by 38 U.S.C.A. § 5110(a) (formerly 38 U.S.C.A. § 3010(a), which states that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim...shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). Thus, since no claim for service connection for PTSD was filed within one year of service discharge, under no circumstances could the effective date for service connection for PTSD antedate or precede the date of receipt of the original claim for service connection therefor on January 18, 1983. That claim was denied by rating actions of May and July 1983. The veteran was notified of each rating action by letter of those same months sent to his address as listed in the original claims of May 1980 (for residuals of exposure to Agent Orange) and January 1983 (for PTSD). Indeed, he testified at the December 1993 hearing (page 2 of the transcript) that this address was still his current address. Since no appeal was taken from the 1983 rating decisions they became final under 38 U.S.C.A. § 7105(c) and 38 C.F.R. § 3.104(a). Given the finality of the 1983 rating decisions, the proper effective date for service connection for PTSD has been properly set as, and under 38 U.S.C.A. § 5110(a) cannot antedate, the date of receipt of the reopened claim on January 15, 1987. The Board notes that voluminous records, including private medical records, were received after that date and that the veteran testified in October 1992 that he first filed a claim for Social Security benefits in 1987. The contentions for an earlier effective date for service connection are essentially two fold and pertain to the 1983 rating decisions. First, that the one-year time limit for filing an NOD to those rating actions, imposed by 38 U.S.C.A. § 7105(b)(1), is inapplicable because the notices of the 1983 rating actions were not mailed, or that the time limit for filing the NOD should be extended beyond the one-year time frame on the basis of good cause under 38 C.F.R. § 3.109(b). Secondly, that there was clear and unmistakable error (CUE) in the 1983 rating decisions. If either aspect of the first contention is true, it would obviate the finality of the 1983 rating actions. If true, the second contention of CUE would require revision of the 1983 rating actions under 38 C.F.R. § 3.105(a). The ultimate outcome of either would be to establish an effective date for service connection for PTSD as of the date of receipt of the original claim on January 18, 1983. Mailing of NOD In Ashley v. Derwinski, 2 Vet.App. 62, 64-65 (1992) the Court held that a mere assertion that a veteran did not receive a notification letter and, indeed, even the fact, if it were a fact, of non-receipt is not the type of "clear evidence to the contrary" sufficient to rebut the presumption of administrative regularity that BVA mailed the notification letters. The Court further noted that while lack of receipt of the notification letters might arguably raise an inference that the notifications were not mailed, this is not the type of "clear evidence" required to rebut the presumption of administrative regularity. The foregoing presumption of administrative regularity applies not only to mailings of Board decisions, but also to RO mailings of notices of rating determinations. Here, there is no evidence to corroborate the veteran's statements and testimony that he did not receive the May and July 1983 notices of the denial of service connection for PTSD. Thus, the presumption of administrative regularity stands unrebutted, i.e., it is presumed that the notices were mailed, which is all that is required and not actual receipt thereof. Extension of Time for Filing NOD 38 U.S.C.A. § 7105(a) (formerly 38 U.S.C.A. § 4005) provides that appellate review is initiated by filing an NOD and completed by filing a substantive appeal after an SOC is furnished. Under 38 U.S.C.A. § 7105(b) and (c) if an NOD is not filed within one year of mailing of the notice of the rating determination, the rating determination becomes final and the claim may not be reopened except as otherwise provided. 38 C.F.R. § 3.109(b) is not inconsistent with 38 U.S.C.A. § 7105 and provides that the time for filing an NOD may be extended or an untimely NOD may be accepted as timely only when requested and good cause is shown. That statute also provides that such an issue is appealable to the Board. 38 U.S.C.A. § 7105(d)(3) (West 1991). "No other VA regulation allows extensions of time for filing an NOD" and "the RO and BVA are authorized to extend the time limit for filing an NOD only [sic] as provided by the applicable regulation, § 3.109(b)." Rowell v. Principi, 4 Vet.App. 9, 15 (1993). In Corry v. Derwinski, 3 Vet.App. 231, 235 (1992) the Court held that there is no legal entitlement to an extension of time within which to file a NOD and that 38 C.F.R. § 3.109(b) leaves it to the sole discretion of the VA to extend the time limit, even if it has already expired, provided good cause is shown. The records in this case were reviewed by a VA psychiatrist in January 1994 with respect to the issue of whether the veteran was so incapacitated by his service-connected PTSD that he was unable to file an NOD. In this regard, the Board notes that at the December 1993 RO hearing the veteran testified (at page 14 of the transcript) that one of symptoms or manifestations of his service-connected PTSD was "limited memory or short-term memory loss." On the other hand, the VA psychiatrist in January 1994 found that the veteran's demeanor and responses on the VA social and industrial survey in February 1983 and the evidence in the claims folders as a whole indicates that he was articulate and had excellent problem solving skills. It was opined that there was no evidence that in 1983 his mental capacity was compromised to the extent that he was unable to read, understand, and then act upon due process notices from the VA. Additionally, the Board's review of the voluminous claims folders in this case demonstrates that the veteran was gainfully employed on a full-time basis from 1979 until his employment was terminated (with subsequent rancor and legal proceedings) in April 1986, (see the VA social and industrial survey of 1983 and page 6 of the December 1990 RO hearing transcript), although the 1983 VA social and industrial survey noted that at that time he was on a six-month 'disability' leave due to his unwillingness to work overtime. The veteran was notified of the January 1994 findings of the VA psychiatrist by RO letter of February 8, 1994, to which was attached a copy of a January 27, 1994, rating action. No medical or clinical evidence of any kind has been submitted in rebuttal of the findings of the VA psychiatrist. Accordingly, the Board determines that the veteran was not so impaired by his service- connected PTSD as to be unable to comprehend the VA adjudicative or appellate process and to excuse his failure to file a timely NOD. Stated in simpler terms, which correspond with the regulatory language, good cause for failing to file a timely NOD in 1983 is not shown. The transcript of the December 1993 RO hearing reflects the contents of a telephone conversation of the veteran with a VA employee, which was taped recorded by the veteran in November 1993. That tape recorded conversation was transcribed into the record of the December 1993 hearing (pages 6 through 14 of that transcript). In November 1993 the veteran stated that he had not been in any condition to file a NOD in 1983 and that at the October 1992 hearing the Board had ruled that this was "not an issue." In other words, it appears that the veteran is under the impression that at the October 1992 hearing the Board ruled that he was not competent to file an NOD, thus warranting an extension of time within which to file an NOD as to the 1983 rating determinations. However, a review of the transcript of the October 1992 Board hearing reflects that no such ruling or determination was made. Indeed, the VA employee with whom the veteran communicated in November 1993 indicated to the veteran that the Board had remanded that particular question to the RO for an initial determination (page 12 of the December 1993 hearing transcript). Indeed, page 4 of the February 1993 Board remand specifically states that "[i]n reviewing the earlier effective date issue the RO should alternately consider the veteran's assertion that he was mentally unable to timely disagree with the 1983 rating decisions." From this, it is quite clear that through no reasonable interpretation could the transcript of the October 1992 Board hearing be construed as reflecting a definitive ruling on the issue of whether the veteran was mentally unable to timely disagree with the 1983 rating decisions. Similarly, the recorded November 1993 conversation of the veteran and a VA employee indicates that the veteran alleged that other individuals should have filed a NOD in his behalf (page 13 of the December 1993 RO hearing transcript). It was clarified that those individuals (their names are recorded at page 13 of the December 1993 transcript) were counselors at a Vet Center (page 10 of the October 1992 transcript). Governing statutes makes it clear that it is the claimant or the claimant's representative that has the obligation of filing an NOD, and not VA employees. See 38 U.S.C.A. § 7105(d)(1) ("[w]here the claimant, or the claimant's representative, ... files a [NOD]"). Because such Vet Center counselors were not his legal representatives, it was incumbent upon the veteran, and not upon others, to file an NOD as to the May 1983 rating decisions. Therefore, an extension of time within which to file an NOD may not be granted. Clear and Unmistakable Error The only remaining method of establishing an earlier effective date for service connection for the veteran's service-connected PTSD is demonstrating CUE in the May 1983 or July 1983 rating actions. If so, revision of those rating actions would result in establishing an effective date as of the date of receipt of the original claim for service connection for PTSD in January 1983. In this regard, the question of CUE in the 1983 rating actions was first addressed by the Board at the October 1992 Board hearing. This is in keeping with the mandate of the Court that the pertinent regulation, 38 C.F.R. § 3.105(a), does not dictate that a CUE claim be raised by a particular party. If the Board recognizes a potential claim of CUE, it is required to follow through and adjudicate the issue. Stanton v. Brown, 5 Vet.App. 563, 569 (1993). In Damrel v. Brown, 6 Vet.App. 242 (1994) the Court synthesized the case law on the proper test to determine if there is CUE, as previously set forth in Russell v. Principi, 3 Vet.App. 310, 313-314 (1992). In Damrel the Court held that for there to be CUE "(1) '[e]ither the correct facts, as they were known at the time, were not known 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 must be based on the record and law that existed at the time of the prior adjudication in question." Damrel, at 245. Moreover, in view of the standard that error must be undebatable and about which reasonable minds cannot differ, the "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b) can never be applicable in a claim of CUE. CUE either exists undebatably or there is no CUE within the meaning of 38 C.F.R. § 3.105(a). Russell v. Principi, 3 Vet.App. 310, 314 (1992). "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 [sic] the conclusion, to which reasonable minds could not differ, that the result would have been manifestly [sic] different but for the error." Fugo v. Brown, 6 Vet.App. 40, 43 (1993). "To warrant review by the Board, a claim of [CUE] must be raised with specificity regarding when and how [CUE] occurred." McIntosh v. Brown, 4 Vet. App. 553, 561 (1993). "[S]imply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, at 44. "It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger." Fugo, at 44. The veteran has asserted CUE on the basis of an alleged error or failure on the part of the VA in 1983 to properly investigate and evaluate his claim for service connection for PTSD. This, in essence, is a claim that BVA failed to fulfill its duty to assist the veteran which it statutorily imposed by 38 U.S.C.A. § 5107(a). In this regard, CUE cannot be premised upon records which an appellant alleges should have been in the record at the time of the prior adjudications in question. The VA's breach of the duty to assist cannot form a basis for a claim of CUE. This is because a breach of this duty, even if true, results only in an incomplete record and not an incorrect record. Porter v. Brown, 5 Vet.App. 233 (1993); Caffrey v. Brown, 6 Vet.App. 377, 383-384 (1994); and Counts v. Brown, 6 Vet.App. 473, 480 (1994) ("CUE cannot be premised upon records which appellant alleges should have [sic] been in the record at the time of the prior adjudications.") The veteran also contends that information recorded in the VA social and industrial survey of February 1983 was either inadvertently or intentionally recorded incorrectly. As to this allegation, an adjudication, otherwise correct, based on erroneous medical evidence is "not an administrative error during the adjudicative process which would require the prior decision to be reversed or amended" under 38 C.F.R. § 3.105(a). Henry v. Derwinski, 2 Vet.App. 88, 90 (1992). Specifically addressing the assertion that the VA social worker in February 1983 intentionally recorded information incorrectly, there is virtually no evidence to support this other than the veteran's uncorroborated allegations. Although there are, as alleged, discrepancies between that social and industrial survey and a subsequent VA social and industrial survey conducted in November and December 1987 such discrepancies fail to establish that there was any intent on the part of the 1983 VA social worker to record information erroneously. Moreover, the veteran is not competent to testify as to the intent of another. Generally, as to competence of a witness, see Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). Lastly, the veteran maintains that medical information, specifically a medical diagnosis, was illegally altered by VA personnel. In fact, it is this contention upon which the veteran has primarily focused. A statement from Robert Alberts, M.D., dated June 22, 1983, was received at the VA adjudication office on June 24, 1983. That statement indicated that he had seen the veteran since October 1982 for problems related to PTSD. The physician indicated that the veteran's therapy should not stop and that physician hoped that the VA would continue to accept responsibility for the veteran's rehabilitation. In this connection, the veteran has stated in numerous letters that in June 1983 the VA was paying for Dr. Alberts' treatment of the veteran. In the lower right hand corner of the original letter is written in red ink "copy to 122 DC on 7/6/83" followed by illegible initials. It is this letter which the veteran alleges was illegally altered to change a diagnosis from a PTSD to personality disorder. A number of years after the 1983 rating decisions, a photocopy of the June 1983 statement of Dr. Alberts was submitted by the veteran. The upper right hand corner of the photocopy of that letter reflects that the veteran had obtained the copy from his VA medical file. At the bottom of the photocopy is a handwritten notation recorded on July 7, 1983, stating "see Dr. Cassell's report and Social Industrial Survey. No extensions are approved at this time by me. (NSC condition)." At the December 1993 RO hearing the veteran essentially testified that there had been criminal misconduct on the part of several rating board personnel inasmuch as they were not qualified to overrule the 1983 diagnosis of Dr. Alberts (pages 2 through 5 of that transcript). The transcript of the December 1993 hearing reflecting the November 1993 phone conversation between the veteran and a VA employee reflects that the veteran asserted his contention of an unlawful change in a diagnosis of PTSD to "NSC." The VA employee informed the veteran that the letters "NSC" stood for the 'legal' term nonservice connected and was not a 'medical' term or diagnosis. Thus, there was no change in a medical diagnosis which would be unlawful. This statement is correct. Indeed, the record overall reflects that the notation was made for the purpose of determining whether ther private physician was to continue to be reimbursed for the medical expenses of treating the veteran and that it was a result of this medical notation that such reimbursement was terminated. Additionally, the VA employee in November 1993 stated to the veteran that the evidence on file in 1983 suggested that the veteran either had PTSD or a personality disorder. A personality disorder is not the proper subject of a grant of service connection under 38 C.F.R. § 3.303(c). Indeed, the official psychiatric examination in April 1983, the report of which was on file at the time of both rating determinations in 1983, yielded a variety of diagnoses including "some evidence of a mixed personality disorder" but did not include a diagnosis of PTSD. The transcript also reveals that in November 1993 the VA employee had informed the veteran that the RO had made a determination that the veteran had a personality disorder, rather than PTSD. From the foregoing, it is self-evident that there was no unlawful or illegal change of any medical diagnosis by VA personnel or criminal misconduct by rating board personnel which would constitute CUE. The exercise of rating judgment at that time was proper and supported by the evidence of record, notably the official examination and social and industrial survey accomplished pursuant to the claim. In conclusion, an earlier effective date for service connection for PTSD is not warranted on the grounds that (1) there was CUE in the unappealed rating actions of May and July 1983, or (2) the notification of those rating actions was not mailed, or (3) he was not competent to file NOD's as to those rating determinations. In reaching these determinations, the Board has given due consideration to the doctrine of resolving all reasonable doubt in favor of the veteran except as to the issue of CUE in the unappealed rating actions of 1983, as explained above. However, it is the determination of the Board that as to the issues to which the doctrine of resolving benefit of the doubt in favor of the veteran applies the evidence preponderates against those claims. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The claim of CUE in the May and July 1983 rating decisions denying service connection for PTSD is denied. An effective date for service connection for PTSD prior to January 15, 1987, is denied. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.