George: CUE and 3.156(c) and PTSD

George v. Shulkin, Case Number 16-1221, decided February 5, 2018 considers the intersection of CUE (clear and unmistakable error) and 38 CFR sections 3.156 in the context of an earlier effective date for PTSD.

The veteran applied for compensation in 1997 for PTSD and was denied because there was no confirmed diagnosis of PTSD and no in-service stressor.  The claim was reopened in 2003 and after a series of decisions and remands PTSD was eventually service connected.  The effective date was 2003, the date the claim was reopened.  The RO had determined records from U.S. Army and Joint Services Record Research Center showed attacks which verified the veteran’s story of a PTSD stressor. 

The veteran filed a notice of disagreement regarding the effective date and after another series of remands the Board denied an effective date earlier than his application to reopen the claim.  The VA had requested an opinion from a mental health examiner about when the PTSD began and the examiner stated October 2003.  That decision was not appealed and became final.  However, a year later, the veteran filed a motion to revise the decision based on CUE.

The motion to revise based on CUE was denied and the Board found the medical evidence did not adequately support the finding the veteran’s PTSD had its onset prior to 2003.  The Court noted the veteran was arguing the Board did not reconsider its decision in light of the new service medical records.  The Court determined the Board did consider 3.156(c) and CUE in its decision and “the Board addressed at length the various steps taken after receipt of the service department records, such as obtaining a retrospective medical examination and considering other evidence such as Social Security records and lay statements.  This type of discussion only makes sense in the context of reconsidering a claim.” Id. at *8.

The Court then turned to whether the Board correctly determined CUE had not occurred and noted the Court’s review was based on a high standard of review, whether the Board’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Id. at *8.  The Court determined the

The development done by VA throughout this appeal supports the Board's finding that reconsideration under § 3.156(c)(1) occurred in the 2014 decision. Specifically, the RO readjudicated the claim in October 2007 and granted service connection, based in part on the newly received service records. Additionally, in April 2013, VA obtained a retrospective medical opinion to determine when the appellant first suffered from PTSD. This medical opinion was apparently a part of VA's efforts to develop the claim, further supporting the notion that reconsideration of the merits was taking place. In the 2014 decision, the Board specifically noted that the date of claim was September 30, 1997, based on § 3.156(c), but found that entitlement did not arise prior to September 19, 2003, when PTSD first had its onset.

Id. at *9.

The Court ultimately determined the Board did not err in not finding CUE. 

In footnotes, the Court noted the adequacy of the medical examination are not before the Court because this is a CUE motion and that “[t]he appellant makes a facially credible argument that, had the Board conducted a "full readjudication" in 2014, his lay statements may have triggered the duty to assist, which, in turn, could lead to the development of evidence of PTSD symptoms prior to 2003. On direct appeal, the appellant would have had the opportunity to argue that the Secretary did not satisfy his duty to assist, but that time has come and gone. This Court has long understood that a

failure of the duty to assist cannot constitute CUE.”  Id. at n. 1 and 3.

This is a difficult decision to wade through.  It involves a denial, a reopened claim resulting in a grant of service connection and an effective date of the application to reopen the claim and finally a CUE claim, but only after the reopened claim was not appealed.  It seems possible if the initial decision with the effective date of the application had been appealed, the result may have been different.  In the end, the case does not really seem to expand on how Section 3.156(c) works except in this fairly limited situation.

Decision by Judge Allen, joined in by Judge Schoelen.  Judge Greenberg wrote a short dissent pointing out how inequitable the result is in that the veteran was initially denied service connection because the examiner in 1998 could not attach the PTSD diagnosis to a stressful event.

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