Veteranclaims’s Blog

July 25, 2017

Manzanares v. Shulkin, No. 2016-1946(Decided: July 19, 2017); 38 C.F.R. § 3.310(a); Secondary Service Connection; Ellington, 541 F.3d at 1370;

Excerpt from decision below:

38 C.F.R. § 3.310(a), … states that a “secondary condition shall be considered a part of the original condition.”

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“Ellington … held that § 3.310(a) concerns only “entitlement to service connection and is silent with respect to the proper effective date for service connection.”
541 F.3d at 1370.”

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United States Court of Appeals for the Federal Circuit
______________________
MARTHA P. MANZANARES,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-1946
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-3646, Judge Mary J. Schoelen.
______________________
Decided: July 19, 2017
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
MARTIN F. HOCKEY, JR., Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK SCADDEN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
2 MANZANARES v. SHULKIN
Before NEWMAN, DYK, and HUGHES, Circuit Judges.
DYK, Circuit Judge.
Martha Manzanares, a veteran, has a primary service-
connected bilateral ankle condition. During the
pendency of a claim for increased rating for her ankle
condition, Ms. Manzanares submitted a claim for a back
condition as secondary service-connected. She appeals
from a decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) that affirmed a
decision by the Board of Veterans’ Appeals (“Board”),
denying her an earlier effective date for her back condition.
We affirm.
BACKGROUND
This case presents the question whether a claim for
increased rating for any service-connected condition
necessarily includes a claim for a secondary serviceconnected
condition by virtue of 38 C.F.R. § 3.310(a), with
a result that Ms. Manzanares is entitled to an earlier
effective date. That regulation states that a “secondary
condition shall be considered a part of the original condition.”
Ms. Manzanares served on active duty from May 1986
until June 1991. In June 1992, she successfully sought an
award of service connection from the Department of
Veterans Affairs (“VA”) for, inter alia, a history of stress
fractures in both legs; she was assigned a noncompensable
rating.
On February 22, 2006, she submitted a claim for increased
rating for injuries to both ankles incurred during
service. Then, in August 2006, the VA noted that this
condition was previously evaluated as a history of stress
fractures in both legs and assigned a ten-percent rating
for each ankle. The VA assigned an effective date of
February 22, 2006.
MANZANARES v. SHULKIN 3
In April 2007, Ms. Manzanares filed a notice of disagreement
with the rating decision, asserted entitlement to
a higher rating, and filed a claim for “[e]ntitlement to
service connection for degenerative disc disease lumbar
spine as secondary to bilateral ankle disabilities.” J.A. 31.
On March 19, 2008, the VA granted secondary service
connection for “degenerative arthritis and disc disease,
lumbar spine” and assigned a rating of twenty percent
with an April 27, 2007 effective date. J.A. 33. Ms. Manzanares
then appealed to the Board, arguing that the VA
should have awarded an effective date of February 22,
2006, for the secondary service-connected condition.
Section 3.156(b) provides that, for a pending claim, “[n]ew
and material evidence received prior to the expiration of
the appeal period . . . 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).
Ms. Manzanares argued that the secondary service connection
claim should be treated as new and material
evidence within the meaning of this regulation making
the secondary service connection claim part of the ankle
claim and considered to have been filed on February 22,
2006, the date of her ankle claim. The Board rejected this
argument, noting that the effective date for service connection
is the later of the date the VA receives the claim
or the date that entitlement arose, and concluded that
Ms. Manzanares’s secondary service claim was not filed
until April 27, 2007.
Ms. Manzanares then appealed to the Veterans Court.
The Veterans Court found no error in the Board’s decision,
concluding that the secondary service connection
claim was not part of the ankle claim and was not filed
until April 27, 2007.
Ms. Manzanares now appeals. We have jurisdiction
under 38 U.S.C. § 7292.
4 MANZANARES v. SHULKIN
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We review
“the validity of a decision of the [Veterans] Court on a rule
of law or of any statute or regulation . . . or any interpretation
thereof (other than a determination as to a factual
matter) that was relied on by the [Veterans] Court in
making the decision.” Id. § 7292(a). We have jurisdiction
to decide all relevant questions of law and to “set aside
any regulation or interpretation thereof (other than a
determination as to a factual matter),” relied upon in the
decision of the Veterans Court, that is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law.” Id. § 7292(d)(1). Our review of these
questions is de novo. See, e.g., Cushman v. Shinseki, 576
F.3d 1290, 1296 (Fed. Cir. 2009). But absent a constitutional
question, we “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2).
Under 38 U.S.C. § 5110(a), “the effective date . . . shall
be fixed in accordance with the facts found, but shall not
be earlier than the date of receipt of application therefor.”
The VA regulations, 38 C.F.R. § 3.400, specifically provide
that “the effective date . . . will be the date of receipt of
the claim or the date entitlement arose, whichever is the
later.” Ms. Manzanares advances two different arguments
for why she is entitled to an effective date for her back
condition that is earlier than the April 2007 date on which
the VA received her claim. At oral argument, though,
appellant’s counsel made clear that Ms. Manzanares is
not advocating entitlement to an effective date before her
back condition actually arose. Oral Argument at 30:40–
31:11, http://oralarguments.cafc.uscourts.gov/default.aspx
?fl=2016-1946.mp3.
MANZANARES v. SHULKIN 5
I
First, Ms. Manzanares relies on a combination of 38
C.F.R. §§ 3.310(a) and 3.156(b). Section 3.310(a) provides:
Except as provided in § 3.300(c), disability which
is proximately due to or the result of a serviceconnected
disease or injury shall be service connected.
When service connection is thus established
for a secondary condition, the secondary
condition shall be considered a part of the original
condition.
Id. (emphasis added). Section 3.156(b) provides:
New and material evidence received prior to the
expiration of the appeal period . . . will be considered
as having been filed in connection with the
claim which was pending at the beginning of the
appeal period.
Ms. Manzanares argues that her April 2007 claim for
secondary service connection for her back condition was
“part” of her pending ankle claim by virtue of § 3.310(a)
and she asserts that § 3.156(b) required that the VA treat
the “new and material evidence”—i.e., her back claim—
“as having been filed” on February 22, 2006, the date of
her ankle claim.1
1 To qualify as “new and material evidence” under
that regulation, Ms. Manzanares’s back condition must
have already existed at the time that the ankle claim was
filed. See 38 C.F.R. § 3.156(a) (“New evidence means
existing evidence not previously submitted to agency
decisionmakers. 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.”). It is unclear whether her
back condition existed on February 22, 2006. It appears as
6 MANZANARES v. SHULKIN
Second, Ms. Manzanares seems to argue in the alternative
that § 3.310(a) treats her back claim as part of her
ankle claim for purposes of 38 C.F.R. § 3.400(o)(2). That
regulation applies to claims for an increase in disability
rating and provides that the effective date is:
[the e]arliest date as of which it is factually ascertainable
based on all evidence of record that an
increase in disability had occurred if a complete
claim or intent to file a claim is received within 1
year from such date, otherwise, date of receipt of
claim.
Id. Since her back claim was submitted within one year
after the condition arose, she asserts entitlement to an
earlier effective date corresponding to the date on which
the back condition arose—a date before April 27, 2007.
Section 3.400(o)(2) applies only if the claim is for an
increase in disability. Ms. Manzanares admits that she is
not seeking an increase in compensation for her secondary
service condition, but relying on the language in
§ 3.310(a), she again asserts that the back claim should be
considered to be part of the ankle claim. In this regard,
Ms. Manzanares advances a similar argument to that
addressed and rejected by the Veterans Court in Ross v.
Peake, 21 Vet. App. 528 (Vet. App. 2008). In Ross, the
veteran argued that the language in § 3.310(a) meant that
a claim for secondary service connection is treated as a
claim for increased compensation for the primary condition,
and is assigned an effective date in accordance with
§ 3.400(o)(2). 21 Vet. App. at 531. The Veterans Court
rejected this argument, noting that § 3.310(a) does not
control effective dates for secondary conditions and,
because a secondary condition is a separate, additional
though the earliest medical record of the back condition is
from September 2006.
MANZANARES v. SHULKIN 7
disability, such a claim cannot be the same as a claim for
increased rating, due to the worsening of the underlying
primary condition, for instance. 21 Vet. App. at 532–33.
II
Ms. Manzanares essentially seeks to use these two
arguments to avoid our holding in Ellington v. Peake, 541
F.3d 1364, 1369 (Fed. Cir. 2008), that § 3.310(a) does not
mean that primary and secondary conditions receive the
same effective date. In Ellington, the veteran was initially
awarded service connection for leukemia. Id. at 1365. He
later submitted claims for diabetes and hypertension as
secondary service-connected conditions. Id. at 1365–66.
He pointed to the definition of “secondary condition” in
§ 3.310(a) and argued that his secondary claims must
have the same effective dates as his primary leukemia
claim. 541 F.3d at 1369. The court rejected this argument
because requiring primary and secondary claims to have
the same effective date “would be illogical, given that
secondary conditions may not arise until years after the
onset of the original condition.” Id. Indeed, there was
evidence in Ellington that the veteran’s diabetes and
hypertension arose after the effective date of his primary
leukemia condition. The court held that § 3.310(a) concerns
only “entitlement to service connection and is silent
with respect to the proper effective date for service connection.”
541 F.3d at 1370. Thus, the normal rules for effective
dates govern secondary claims. Id. at 1369.
We see no meaningful distinction between this case
and Ellington even though Ellington did not consider the
other provisions upon which Ms. Manzanares now relies.
Essentially, Ellington held that secondary service connection
is not part of a primary claim for service connection.
We see no basis to depart from that holding. Section
3.310(a) speaks in terms of conditions, not claims.
This distinction is critical. That section provides that a
“disability which is proximately due to or the result of a
8 MANZANARES v. SHULKIN
service-connected disease or injury shall be service connected
[and w]hen service connection is thus established
. . . , the secondary condition shall be considered a part of
the original condition.” Id. (emphases added). By its plain
terms, this language does not mean that a claim for
secondary service connection is treated as part of the
primary claim for service connection (or a claim for increased
rating for the primary condition). Moreover, there
is nothing in the definition of “claim” in 38 C.F.R. § 20.3(f)
that suggests that it includes secondary conditions or that
it carves out a separate rule for secondary service connection.
That regulation simply provides that “[c]laim means
application made under title 38, United States Code, and
implementing directives for entitlement to Department of
Veterans Affairs benefits or for the continuation or increase
of such benefits, or the defense of a proposed
agency adverse action concerning benefits.” Id.
Nor, contrary to Ms. Manzanares’s argument, is there
anything in 38 C.F.R. § 3.155(d)(2) that supports her
position. Ms. Manzanares argues that that section requires
her back claim to be treated as an “ancillary benefit.”
Id. The regulation provides in relevant part:
[The] VA will adjudicate as part of the claim entitlement
to any ancillary benefits that arise as a
result of the adjudication decision (e.g., entitlement
to 38 U.S.C. Chapter 35 Dependents’ Educational
Assistance benefits, entitlement to special
monthly compensation under 38 CFR 3.350, entitlement
to adaptive automobile allowance, etc.).
The claimant may, but need not, assert entitlement
to ancillary benefits at the time the complete
claim is filed.
Id. A claim for secondary service connection is not an
“ancillary benefit” within the meaning of that regulation;
all of the ancillary benefits referred to in § 3.155(d)(2)
MANZANARES v. SHULKIN 9
stem from the specific condition that is the subject of the
claim, not some other unidentified condition.
There is also nothing in the history of § 3.310(a) to
suggest that a claim for secondary service connection
should be treated as part of a claim for primary service
connection. After argument, we asked the parties to
submit supplemental letter briefs on the history of
§ 3.310(a) and its relationship to § 3.156(b). The briefs
provided a helpful description of the history and evolution
in language of § 3.310(a), but nothing in that history
suggests that secondary service connection is part of a
claim for primary service connection or one for increased
rating for a primary condition.
The 1933 regulation provided that “[w]hen service
connection is thus established for a secondary condition,
the secondary condition will be considered a part of the
original condition for all purposes, i.e., for determinations
regarding rights on account of combat, etc.” Veterans
Regulation No. 3(a), Instruction No. 1, ¶ 5 (June 24,
1933). In 1936, the final clause of the instruction was
removed. See Veterans Admin. Regulations, R. & P.R.
¶ 1101 (1936). Then, in 1961, the “for all purposes” language
was also removed without explanation. U.S. Dep’t
of Veterans Affairs, Office of Gen. Counsel, Precedential
Op. No. 77-90, at 7 (July 18, 1990) (citing 26 Fed. Reg.
1561, 1582 (1961)). In its current form, § 3.310(a) provides
that a “disability which is proximately due to or the result
of a service-connected disease or injury . . . shall be considered
a part of the original condition.” The VA itself has
found the “shall be considered a part of the original condition”
language to be puzzling, but concluded that it “appears
to mean that the service-connected status of the
secondary condition is equivalent to such status established
on the ground of direct service connection.” U.S.
Dep’t of Veterans Affairs, Office of Gen. Counsel, Precedential
Op. No. 2-98, at 5 (Feb. 10, 1998).
10 MANZANARES v. SHULKIN
Regardless of the precise meaning and purpose behind
this portion of § 3.310(a), it cannot mean that primary
claims for service connection or subsequent claims for
increased ratings for primary conditions necessarily
encompass later claims for secondary service connection.
Such a reading is inconsistent with the plain language of
the regulation, which refers to conditions rather than
claims.
Finally, Ms. Manzanares cites our decisions in Bond
v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) and Beraud v.
McDonald, 766 F.3d 1402 (Fed. Cir. 2014), but neither
supports her position. In Bond, we held that a claim for
increased rating must be treated as potentially “new and
material” evidence in support a pending claim for the
same condition, if that evidence satisfied the new and
material evidence criteria of § 3.156(b). 659 F.3d at 1367.
Beraud similarly held that it was error for the VA not to
consider whether evidence submitted during the appeal
period was “new and material.” 766 F.3d at 1407. Neither
case dealt with secondary service connection, much less
suggested that secondary service connection is part of a
primary benefits claim.
In short, § 3.310(a) does not make a claim for secondary
service connection part of the primary service connection
claim. The Veterans Court did not err in awarding an
April 27, 2007, effective date for Ms. Manzanares’s secondary
service connection claim.
AFFIRMED
COSTS
No costs.

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