Veteranclaims’s Blog

October 13, 2018

Single Judge Application; EED PTSD;38 C.F.R. § 3.156(b); constructively before VA adjudicators;Turner, 29 Vet.App. at 211;

Excerpt from decision below:

“For a pending claim, 38 C.F.R. § 3.156(b) provides that “[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.” In Turner, the Court found that where a rating decision is issued and new and material evidence is submitted within the appeal period, the RO decision does not become final until the RO acts on that new evidence.32 The Court also held that VA treatment records generated within the one-year period following an RO decision may satisfy the requirements of § 3.156(b) when VA adjudicators were aware “of the existence of those VA treatment records within the one-year appeal period.”33 The
Court’s holding in Turner was based, in part, on its earlier decision in Bell v. Derwinski34 under which “VA is considered aware of VA-generated evidence when put ‘on notice as to its possible existence and relevance’ and when such records ‘could reasonably be expected to be part of the record.'”35
Here, the Board found that the July 1998 RO decision was final and did not address the
March, April, May, June, and July 1999 VA medical records regarding Mr. Cleveland’s mental health.36 As the Secretary points out, the Board thus failed to determine whether those VA treatment records, generated in the one-year appeal period following the July 27, 1998, decision, were constructively before VA adjudicators so as to warrant consideration of Mr. Cleveland’s claim under § 3.156(b).37 For that reason, remand is required for the Board to discuss the VA treatment records generated from July 27, 1998, to July 27, 1999 and explain whether, pursuant to Turner, VA adjudicators had constructive receipt of those records before the expiration of the one year appeal period.38 On remand, per Quirin v. Shinseki, the Board should also consider that in
31 Secretary’s Br. at 6-7.
32 Turner, 29 Vet.App. at 211.
33 Id. at 218.
34 2 Vet.App. 611 (1992).
35 Id. at 217 (quoting Bell, 2 Vet.App. at 612-13).
36 R. at 6-8; see R. at 3610-19, 4016, 4122, 4138, 8578, 8674.
37 R. at 6-7; Secretary’s Br. at 7.
38 See Turner, 29 Vet.App. at 211, 218 (the “level of knowledge of existence [that] is required to trigger constructive receipt” of VA treatment records “is a factual determination that the Board must address”); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), (the Board must provide reasons and bases for its rejection of material evidence
favorable to the claimant) aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Tucker v. West, 11 Vet.App.
6
February 1999, the RO requested VA medical reports from a VAMC and in April and July 1999 proceedings, relied on VA outpatient treatment records.39

========================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0447
HORACE CLEVELAND, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

FALVEY, Judge: Army veteran Horace Cleveland appeals through counsel an October 18,
2016, Board of Veterans’ Appeals decision denying an effective date earlier than February 24, 2000, for service-connected post-traumatic stress disorder (PTSD).1 The appeal is timely; the Court has jurisdiction to review the Board decision; and single-judge disposition is appropriate.2
We are asked to decide whether the Board provided adequate reasons or bases for denying an effective date earlier than February 24, 2000, for PTSD. Because the Board failed to do so, the Court will set aside that portion of the Board decision and remand the matter.

I. FACTS
Mr. Cleveland served on active duty in the U.S. Army from November 1987 to June 1996.3
1 Record (R.) at 2-13. The Board remanded claims for service connection for residuals of service-connected
basilar skull fracture, including bladder and bowel incontinence, tinnitus, and diplopia with blurred vision; a rating in
excess of 10% for headaches; and an initial rating in excess of 50% for PTSD. R. at 2, 9-13. Because a remand is not
a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider those matters
at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478
(2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2018).
2 See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
3 R. at 653.
2
In September 1997, he filed a claim for service connection for PTSD and nervousness.4 In
January 1998, the veteran stated that the camp in which he was stationed during Desert Storm was
hit six times by friendly fire and that he was almost killed.5 In April 1998, a VA examiner
diagnosed adjustment disorder with depressed mood, stating that Mr. Cleveland had symptoms of depression rather than “classic symptoms of PTSD.”6 On July 27, 1998, a VA regional office (RO) denied service connection for PTSD because there was no clear diagnosis of that condition.7
In January 1999, the veteran filed a Notice of Disagreement (NOD) asking that VA
reevaluate his service-connected conditions (asthma and headaches) and stating that he received treatment from a VA medical center (VAMC).8 In February 1999, the RO requested treatment reports from the VAMC.9
A March 1999 VA consult request noted that Mr. Cleveland had depression for over 10
years, which was identified in the military but not treated since discharge; had problems with social relations because of stress; and was currently unemployed because of his temper.10 An April 1999 VA mental health consult noted depression associated with multiple stressors; poor sleep; decreased appetite; and the use of alcohol and drugs daily to calm himself.11 Another VA medical record from that month noted that Mr. Cleveland’s nonchalance regarding his syncopal12 symptoms was curious and that a psychiatric consult should be considered.13 An April 1999 RO decision as to the veteran’s other claims relied on VA outpatient treatment reports.14
4 R. at 8787 (he also filed claims for service connection for asthma and headaches).
5 R. at 8770.
6 R. at 8737.
7 R. at 8708, 8711-12. The RO also denied service connection for adjustment disorder with depressed mood
and nervousness because adjustment disorder was a congenital or developmental defect and nervousness was related
to that condition. The RO continued the current asthma rating and granted service connection for headaches.
8 R. at 8692.
9 R. at 8677.
10 R. at 4138.
11 R. at 4016.
12 Syncopal relates to a temporary suspension of consciousness or faint. See DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 1818 (32d ed. 2012).
13 R. at 3618-19.
14 R. at 8666.
3
A May 1999 VA discharge summary indicated that the veteran was admitted for alcohol
and cocaine dependence treatment from May 10 to May 25, 1999; that depression and anxiety were noted on admission; and that he was diagnosed with adjustment disorder with depressed mood.15
A November 1999 discharge summary indicated that Mr. Cleveland was admitted for treatment from June 1999 to October 1999; that he was diagnosed with polysubstance dependency and PTSD, which began during or after service; and that he continued to experience the following PTSD symptoms: intrusive thoughts, nightmares, difficulty sleeping, irritability, trouble concentrating, hypervigilance, social restrictions, and feeling detached.16 A July 22, 1999, psychotherapy record noted an impression of PTSD.17 An October 1999 VA social work letter noted that Mr. Cleveland was diagnosed with PTSD on June 25, 1999, at the Center for Stress Recovery and had been receiving treatment since that date.
In November 1999, Mr. Cleveland’s representative submitted VA medical records, which
appear to include the May and November 1999 discharge summaries.18 A February 24, 2000, report of contact noted that the “vet[eran] says he never got notice” and that he “had another claim for PTSD which he says he filed in Sept[ember].”19 An October 2000 deferred rating decision stated that the February 2000 report of contact noted that during the telephone call the veteran referenced a PTSD claim filed in September 1999; found that there was no record of such a claim; and instructed him to complete an enclosed VA form if he wished to reopen his claim.20
In January 2001, Mr. Cleveland filed a claim to reopen his PTSD claim.21 In May 2002,
the RO denied reopening the veteran’s claim, stating that, although the May and November 1999 VA discharge summaries and July 1999 to September 2000 VA outpatient records were new, that evidence was not material.22 In August 2004, the Board reopened the veteran’s PTSD claim,
15 R. at 3613-14.
16 R. at 3610-11; see also R. at 4122 (another VA medical record requested a PTSD assessment for the veteran
in June 1999); R. at 8650 (a July 1999 Statement of the Case regarding the veteran’s others claims relied on VA
outpatient treatment reports).
17 R. at 8674; see also R. at 8578 (July 22, 1999, medical record noting therapy group for PTSD education).
18 R. at 8610-27.
19 R. at 8606.
20 8533.
21 R. at 8522.
22 R. at 8469-71.
4
finding that evidence associated with the claims folder since the July 1998 RO denial, which included VA medical records regarding the veteran’s 1999 hospitalizations for treatment, were new and material.23
After further proceedings, in January 2013 the Board granted service connection for PTSD and remanded for additional development.24 In July 2013, the RO awarded a 50% evaluation for PTSD effective January 2001.25 Mr. Cleveland filed an NOD, the RO issued a Statement of the Case, and the veteran perfected his appeal.26 In the October 2016 decision on appeal, the Board granted an effective date of February 24, 2000, but no earlier, for PTSD.27 The Board found that, resolving doubt in favor of the veteran, the February 24, 2000, report of contact satisfied the requirements for an informal claim and thus the date of that report would be the earliest possible effective date.28 This appeal followed.
II. ANALYSIS
Mr. Cleveland argues that the Board failed to address evidence generated during the oneyear
appeal period following the July 27, 1998, RO denial and to determine whether that evidence
constituted new and material evidence under 38 C.F.R. § 3.156(b) so as to prevent finality of the
July 1998 RO decision.29 The veteran asserts that the Board thus failed to provide adequate reasons
or bases for denying an effective date earlier than February 24, 2000, for PTSD. The Secretary
concedes that remand is warranted for the Board to address whether VA was in constructive
possession of the VA treatment records generated during the one-year appeal period following the
July 1998 RO decision pursuant to Turner v. Shulkin30 and for the Board to then provide adequate
23 R. at 8301-02.
24 R.at 3524.
25 R. at 2431.
26 R. at 2204, 2318.
27 R. at 22.
28 R. at 7-8.
The Court notes that both the October 2016 Board decision and October 2000 deferred rating decision appear
to incorrectly state that Mr. Cleveland referenced a September 1999 PTSD claim in his February 2000 report of
contact. However, the veteran stated only that he filed a PTSD claim in September. R. at 8606. He filed his original
PTSD claim in September 1997. R. at 8787.
29 See Appellant’s Brief (Br.) at 13.
30 29 Vet. App. 207, 210 (2018).
5
reasons or bases for denying an earlier effective date.31
For a pending claim, 38 C.F.R. § 3.156(b) provides that “[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.” In Turner, the Court found that where a rating decision is issued and new and material evidence is submitted within the appeal period, the RO decision does not become final until the RO acts on that new evidence.32 The Court also held that VA treatment records generated within the one-year period following an RO decision may satisfy the requirements of § 3.156(b) when VA adjudicators were aware “of the existence of those VA treatment records within the one-year appeal period.”33 The
Court’s holding in Turner was based, in part, on its earlier decision in Bell v. Derwinski34 under which “VA is considered aware of VA-generated evidence when put ‘on notice as to its possible existence and relevance’ and when such records ‘could reasonably be expected to be part of the record.'”35
Here, the Board found that the July 1998 RO decision was final and did not address the
March, April, May, June, and July 1999 VA medical records regarding Mr. Cleveland’s mental health.36 As the Secretary points out, the Board thus failed to determine whether those VA treatment records, generated in the one-year appeal period following the July 27, 1998, decision, were constructively before VA adjudicators so as to warrant consideration of Mr. Cleveland’s claim under § 3.156(b).37 For that reason, remand is required for the Board to discuss the VA treatment records generated from July 27, 1998, to July 27, 1999 and explain whether, pursuant to Turner, VA adjudicators had constructive receipt of those records before the expiration of the one year appeal period.38 On remand, per Quirin v. Shinseki, the Board should also consider that in
31 Secretary’s Br. at 6-7.
32 Turner, 29 Vet.App. at 211.
33 Id. at 218.
34 2 Vet.App. 611 (1992).
35 Id. at 217 (quoting Bell, 2 Vet.App. at 612-13).
36 R. at 6-8; see R. at 3610-19, 4016, 4122, 4138, 8578, 8674.
37 R. at 6-7; Secretary’s Br. at 7.
38 See Turner, 29 Vet.App. at 211, 218 (the “level of knowledge of existence [that] is required to trigger constructive receipt” of VA treatment records “is a factual determination that the Board must address”); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), (the Board must provide reasons and bases for its rejection of material evidence
favorable to the claimant) aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Tucker v. West, 11 Vet.App.
6
February 1999, the RO requested VA medical reports from a VAMC and in April and July 1999 proceedings, relied on VA outpatient treatment records.39
The veteran is free on remand to submit additional evidence and argument, including the
arguments raised in his briefs to this Court; he has 90 days from the date of the postremand notice
VA provides.40 The Board must consider any such evidence or argument submitted.41
III. CONCLUSION
On consideration of the foregoing, the portion of the October 18, 2016, Board decision
denying an effective date earlier than February 24, 2000, for PTSD, is SET ASIDE and the matter
is REMANDED. The remainder of the appeal is DISMISSED.
DATED: October 12, 2018
Copies to:
John F. Cameron, Esq.
VA General Counsel (027)
369, 374 (1998) (holding that remand is appropriate where the Board incorrectly applied the law or failed to provide
an adequate statement of reasons or bases or where the record is otherwise inadequate).
39 Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009); see R. at 8648, 8650, 8666, 8677.
40 Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (per curiam order); see also Clark v. O’Rourke,
30 Vet.App. 92, 97 (2018).
41 See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see also 38 U.S.C. § 7112 (a remand must be performed
in an expeditious manner); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
examination of the justification for the decision.”).

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