Veteranclaims’s Blog

November 28, 2011

Single Judge Appication, Mayhue, 24 Vet.App. at 279-80, 3.156(c)(2) Cannot be Used to Deny EED When Records Were Available to VA

Filed under: Uncategorized — veteranclaims @ 8:48 pm

In Mayhue, the Court recognized that § 3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service records case where the information ultimately used to verify a purported stressor was available to VA at the time the PTSD claim was previously denied. 24 Vet.App. at 279-80. The Court observed that it was VA’s failure to use the information that it always had available, rather than any inaction on the part of the claimant, that prevented the agency from corroborating the stressor at an earlier date. Id.
===========================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4735
SAMUEL E. TAYLOR, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FARLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FARLEY, Judge: The appellant, through counsel, appeals from the December 23, 2009, decision of the Board of Veterans’ Appeals(Board) that denied entitlement to an effective date earlier than February4, 1998, for the grant of service connection for post-traumatic stress disorder (PTSD).
This appeal is timely and the Court has jurisdiction to review the Board’s decision pursuant to 38U.S.C. §§ 7252(a)and 7266. Single-judge disposition is appropriate when the issue is of “relative

simplicity” and “the outcome is not reasonablydebatable.” Frankel v.
Derwinski, 1 Vet.App. 23, 25-
26 (1990). On March 28, 2011, the appellant filed a motion for oral
argument pursuant to Rule 34
of the Court’s Rules of Practice and Procedure. However, because oral argument would not
“materially assist in the disposition of this appeal,” the motion will be
denied. Janssen v. Principi,
15 Vet.App. 370, 379 (2001) (per curiam). For the following reasons, the
Court will vacate the
Board’s decision and remand the matter for further proceedings consistent
with this opinion.
I. FACTS
The appellant served on active duty in the U.S. Army from September 1966
to September
1968, including service in Vietnam. Record (R.) at 461, 618-20. In May
1992, the regional office (RO) denied his claim for service connection for PTSD because a recent VA examination did not

include a diagnosis of PTSD. R. at 570-71. The appellant did not file a
timely appeal of that decision and it became final. R. at 494-95, 498-99, 550-59. The RO denied the appellant’s application to reopen his claim in May 1994. R. at 489-90. He did not appeal this decision and it became final.
On February 4, 1998, the appellant filed an application to reopen his
claim for service connection for PTSD. R. at 482. The appellant was afforded a VA
examination in March 1998. The examiner diagnosed the appellant’s psychiatric disorder as major depression with psychotic features and concluded that the appellant did not meet the requirements for a PTSD diagnosis. R. at 468.
In April 1998, the RO denied the appellant’s claim as not well grounded
due to the lack of a medical diagnosis of PTSD. R. at 464-66. The appellant perfected an appeal of the RO decision. R. at 427, 437-58. He also submitted additional evidence to support his claim, to include a statement in which he specificallystated, amongother things, that he was assigned to the 145th Aviation Battalion when
a convoyhe was in was ambushed and the driver of the truck in front of his, named Washington, was
shot. R. at 443.
In October 2001, evidence received from the U.S. Armed Services Center for
Unit Records
Research (CURR) verified two of the appellant’s stressors: (1) that he was
exposed to rocket and
mortar attacks at Ben Hoa in January 1968; and (2) that Specialist Four (
SP4) Washington was
wounded in action on January 30, 1968, from small arms fire and was
assigned to the same higher
headquarters as the appellant. R. at 330. In February 2002, the RO granted
service connection for
PTSD and assigned a rating of 100%, effective April 13, 1999. R. at 313-23.
The appellant
perfected an appeal of the effective date and, in May 2007, the Board
granted entitlement to an
effective date of February4, 1998, but no earlier, for the grant of
service connection for PTSD. R. at
78-85, 113-15, 278. In June 2007 the appellant filed a motion for revision
of the May 2007 Board
decision on the basis of clear and unmistakable error (CUE). R. at 73.
While his motion for revision
of the May 2007 Board decision was pending, the appellant appealed the
Board’s 2007 decision to
the Court and, in July2009, the Court remanded the Board’s 2007 decision
pursuant to a joint motion
for remand. R. at 38, 39-44. That same month, the Board dismissed the
appellant’s motion for
revision of the Board’s decision on the basis of CUE because the 2007
Board decision was not final.
R. at 26-29. On December 23, 2009, the Board issued its decision on appeal
in which it denied
2

entitlement to an effective date prior to February 4, 1998, for service
connection for PTSD. R. at 3-
14. This appeal followed. The appellant argues for reversal or, in the
alternative, for remand.
Appellant’s Brief (Br.) at 7-24. The Secretary argues for affirmance of the Board’s decision.
Secretary’s Br. at 8-28.
II. ANALYSIS
The Board’s determination of the proper effective date for an award of VA
benefits is a
finding of fact reviewed under the “clearly erroneous” standard of review
set forth in 38 U.S.C.
§ 7261(a)(4). “‘A finding is “clearly erroneous” when although there is
evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has
been committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting
United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)). The Court may not substitute its
judgment for the factual
determinations of the Board on issues of material fact merely because the
Court would have decided
those issues differently in the first instance. Id. The Board, in
rendering its decision, is required to
provide a written statement of the reasons or bases for its “findings and
conclusions . . . on all
material issues of fact and law presented on the record.” 38 U.S.C. §
7104(d)(1). The statement
must be adequate to enable a claimant to understand the precise basis for
the Board’s decision and
to facilitate review in this Court. Gilbert, 1 Vet.App. at 56-57.
The determination of the effective date for an original claim or a
reopened claim is governed
by38 U.S.C. § 5110(a), which provides: “Unless specificallyprovided
otherwise in this chapter, the
effective date of an award based on an original claim [or] a claim
reopened after final adjudication
. . . shall be fixed in accordance with the facts found, but shall not be
earlier than the date of receipt
of application therefor.” The implementing regulation similarly states
that the effective date shall
be the date of receipt of the claim or the date entitlement arose,
whichever is later, unless the claim
is received within one year after separation from service. 38 C.F.R. § 3.
400 (2011).
However, pursuant to 38 C.F.R. § 3.156(c)(1), “if VA receives or
associates with the claims
file relevant official service department records that existed and had not
been associated with the claims file when VA first decided the claim, VA will reconsider the claim.”
3

Pursuant to § 3.156(c)(3), “[a]n award made based all or in part on the
records identified by
paragraph (c)(1) . . . is effective on the date entitlement arose or the
date VA received the previously
decided claim, whichever is later.” 38 C.F.R. § 3.156(c)(3) (2011). An
exception to the foregoing
is provided under 38 C.F.R. § 3.156(c)(2), which provides that paragraph (
c)(1) does not apply “to
records that VA could not have obtained when it decided the claim . . .
because the claimant failed
to provide sufficient information for VA to identifyand obtain the records
.” 38 C.F.R. § 3.156(c)(2).
Prior to VA’s 2006 amendment to 38 C.F.R. § 3.156(c), “‘§ 3.400(q)(2)
govern[ed] the effective date
of benefits awarded when VA reconsider[ed] a claim based on
newlydiscovered service department
records.'” Mayhue v. Shinseki, 24 Vet.App. 273, 277 (2011) (quoting New
and Material Evidence,
70 Fed. Reg. 35,388 (proposed June 20, 2005)). Read together, §§ 3.156(c)
and 3.400(q)(2)
provided that the effective date for an award of benefits based on newly
discovered service
department records that were previously unavailable “may relate back to
the date of the original
claim or date entitlement arose even though the decision on that claim may
be final under [38
C.F.R.] § 3.104.” Id.
The appellant first argues that the Board impermissibly applied the
current version of
38 C.F.R. § 3.156(c) rather than the earlier, more favorable, version of
the regulation. Appellant’s
Br. at 10-14. He specifically objects to the Board’s reliance on § 3.156(
c)(2), which was added in
2006. Appellant’s Br. at 12-13. The Secretary argues for affirmance of the
Board’s decision.
Secretary’s Br. at 8-28. He contends that there is a plausible basis for
the Board’s decision that an
effective date prior to February4, 1998, is not warranted because the
earliest effective date available
in the instant case is the date of receipt of the appellant’s claim to reopen, or February 4, 1998.
Secretary’s Br. at 9-13. He specifically argues that neither the 1998
version of § 3.156(c) nor the
current version of that regulation would allow for an earlier effective
date than that assigned because
the appellant did not meet the criteria for PTSD since he lacked a
diagnosis of PTSD until April
1999. Secretary’s Br. at 17-18. In fact, the Secretary distinguishes the
instant appeal from that in
Vigil v. Peake, 22 Vet.App. 63 (2008), on that basis. Secretary’s Br. at
19.
The appellant provides no support for his contention that the earlier
version of the regulation
is more favorable than the current version of the regulation. Appellant’s
Br. at 11-14. As pointed
out by the appellant, the Board focused on the current version of § 3.156(
c) and did not address the
4

earlier version of the regulation, to include whether it was more
favorable than the current version.
Appellant’s Br. at 21-22. The Board’s failure to address this matter
renders its reasons or bases
inadequate for judicial review in the instant case. See Karnas v.
Derwinski, 1 Vet.App. 308, 313
(1991) (holding “where the law or regulation changes after a claim has
been filed or reopened but
before the administrative or judicial appeal process has been concluded,
the version most favorable
to the appellant should . . . apply unless Congress provided otherwise or
permitted the Secretary . . .
to do otherwise and the Secretary did so.”)), overruled in part by Kuzma v.
Principi, 341 F.3d 1327,
1328-29 (Fed. Cir. 2003); Gilbert, supra; see also Baker v. West, 11 Vet.
App. 163, 168-69 (1998)
(remanding for the Board to determine in the first instance whether a
revised version of a regulation
was more favorable to an appellant than a previous version).
Additionally, review of the Board’s decision reveals that the Board’s determination that the appellant did not provide sufficient stressor information to permit corroboration of his PTSD stressors prior to February 1998 is not supported by an adequate statement of reasons or bases. R. at
13-14; see Gilbert, supra. In Mayhue, the Court recognized that § 3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service records case
where the information ultimately used to verify a purported stressor was available to VA at the time the PTSD claim was previously denied. 24 Vet.App. at 279-80. The Court observed that it was VA’s failure to use the information that it always had available, rather than any inaction on the
part of the claimant, that prevented the agency from corroborating the stressor at an earlier date. Id.
The Board in the instant case conceded that the RO granted service connection for PTSD, at least in part, based on CURR’s verification of the appellant’s contention that he was exposed to rocket fire and enemy attacks at Ben Hoa in January1968 and that he witnessed the injury of a fellow
soldier who was wounded in action in January 1968. R. at 13. The Board also correctly noted that the reference to “official service department records” in § 3.156(c) ”
include[d] CURR reports such
as the reports associated with the [appellant’s] claims folder in October
2001.” R. at 11; Vigil, supra.
However, the Board further found that “the detailed stressor information
upon which the CURR
verification was based was not of record until the [appellant] filed his
claim to reopen in February
1998. Inconjunctionwith his February1998claimto reopen,[he]
essentially provided appropriately detailed information . . . which enabled the RO to make the CURR request
in January 2001 which
5

led to stressor verification.” R. at 13-14. The Board further found that prior to February 1998, the appellant’s descriptions of in-service stressors were without sufficient
detail to allow for verification and that § 3.156(c)(2) was therefore applicable. R. 13-14.
The appellant correctly notes that service personnel records before the VA as early as August 1991 showed the dates that he was stationed at Ben Hoa. Appellant’s Br. at
17; R. at 615-20. He further alleges that these records together with his April 1992 and February1993 stressor statements provided sufficient information to permit verification of his PTSD stressor concerning mortar and
rocket attacks at Ben Hoa. Appellant’s Br. at 7. Because the Board does not address this information in the context of the sufficiency of the appellant’s stressor information
prior to February 1998 or in the context of Mayhue, which was issued after the Board’s decision in the instant case, remand is required. See Mayhue and Gilbert, both supra.
Because it has been determined that remand is appropriate for the foregoing reasons, the Court will not address the appellant’s other arguments for remand. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of the appellant’s claim under one theory moots the remaining theories
advanced on appeal). On remand, the appellant may present any additional evidence and argument in support of the matter remanded, and the Board must consider any
evidence and argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided
expeditious treatment on remand. See 38 U.S.C. § 7112.
Although the appellant argues for reversal of the Board’s decision, his argument is not persuasive. Appellant’s Br. at 7-19. Reversal is the appropriate remedy only in cases in which the only permissible view of the evidence is contrary to the Board’s decision. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996).
Generally, where the Board has incorrectly applied the law or failed to provide an adequate statement of reasons or bases for its determinations or where the record is otherwise inadequate, remand is the appropriate remedy. See Coburn v. Nicholson, 19 Vet.App. 427, 431 (2006) (holding that remand is appropriate when “the
Court finds that the Board decision is defective in its reasons or bases thereby preventing proper review by the Court”); Tucker v. West, 11 Vet.App. 369, 374 (1998). Here, the Court is precluded from reviewing the Board’s decision due to its inadequate reasons or bases.
Thus, reversal is not the
6

proper remedy; the Court will vacate the decision and remand the matter on appeal for readjudication.

III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties’ pleadings, the December 23, 2009, Board decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: November 10, 2011
Copies to:
Sean A Ravin, Esq.
VA General Counsel (027)
7

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.