The 2022 VA decision to grant an effective date of December 2021 for the increased rating for PTSD from 30% to 100% is clear and unmistakable error. Under 38 CFR 3.105(a) a CUE exists if all three of the following requirements are met:
• either the correct facts, as they were known at the time, were not before
the adjudicator, (e.g., the adjudicator overlooked them) or the statutory
or regulatory provisions extant at the time were incorrectly applied;
• the error must be the sort which, had it not been made, would have
manifestly changed the outcome at the time it was made; and
• the determination must be based on the record and the law that existed
at the time of the prior adjudication in question.
The October 2022 decision is CUE because the 2013 decision granting a 30% rating for PTSD is not final. That decision is not final because of the requirement that VA reconsider the decision if additional medical evidence is in the possession of VA within one year following the decision. For legacy decisions that were made prior to the enactment of the modernized review system, 38 C.F.R. § 3.156(b) provides:
New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.
38 C.F.R. § 3.156(b) (2020).
Further, “[n]ew evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. § 3.156(a). Although these definitions appear in subsection (a) of the regulation, they apply to subsection (b) as well. See Voracek v. Nicholson, 421 F.3d 1299, 1304- 05 (Fed. Cir. 2005).
This provision “is intended to be a veteran-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met.” Young v. Shinseki, 22 Vet.App. 461, 469 (2009) (citing General Evidence Requirements, Effective Dates, Revision of Decisions, and Protection of Existing Ratings, 72 Fed. Reg. 28,778 (May 22, 2007)). And when implicated, it “suspends finality in the decision to which it applies until VA takes the action required.” Mitchell v. McDonald, 27 Vet.App. 431, 436 (2015). This is made plain by VA's effective-date regulation: "When new and material evidence is received within the appeal period or prior to the issuance of an appellate decision, the effective date for any resulting award of benefits “will be as though the former decision had not been rendered.” 38 C.F.R. § 3.400(q)(1) (2020).
A review of VBMS, and the Capri records on file, shows medical records from the VA for treatment of PTSD in the year following the October 2013 decision granting a 30% rating for PTSD. For example, on July 17, 2014 Appellant was treated by VA for PTSD as shown by Social Work General Notes. The purpose of the visit was to “manage PTSD and anxiety symptoms.” A note by Jennifer indicated that the focus of the attention of the visit was “individual psychotherapy.” Thus, the VA medical records on file are relevant to the PTSD rating, and the October 2013 PTSD rating is not final until the VA takes action on reconsideration of that decision.
In Bond v. Shinseki, 659 F.3d 1362, 1363 (Fed. Cir. 2011) the Federal Circuit held that, under § 3.156(b), “VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Id. at 1369. VA is required to "assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim.” Bond, 659 F.3d at 1363, 1367 (referring to evidence VA received within one year of a rating decision that granted service connection for PTSD and assigned an initial disability rating). Such evidence includes VA treatment records constructively received during the relevant appeal period. Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020).It cannot be presumed that VA had silently considered the evidence in connection with the pending claim. Id. at 1368. Section 3.156(b)requires VA to respond “directly” to a submission received during the appeal period and, “until it does so, the claim at issue remains open.” Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Based on this, the claim for increased rating remains open since 2013 and VA must consider and assign an effective date consist with the claim remaining open from that date; assigning an effective date of 2024 is CUE.
