Veteranclaims’s Blog

February 21, 2020

Single Judge Application; 38 C.F.R. § 3.156(c); service department record; Air Force Report is a “service department record[]” for purposes of 38 C.F.R. § 3.156(c); Base Defense in Thailand -1968-1972, Project CHECO Report;

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-6600
WILBUR P. HENLEY, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Wilbur Henley served the Nation honorably in the United States
Air Force, including in the Republic of Vietnam. In this appeal, which is timely and over which
the Court has jurisdiction,1 he contests a July 30, 2018, decision of the Board of Veterans’ Appeals
that denied him entitlement to an effective date before August 30, 2010, for the grant of service
connection for PTSD. 2 The Board’s determination that a certain Air Force report appellant
submitted does not qualify as a “service department record,” is clearly erroneous and we will
reverse that determination. We will then set aside the Board’s decision and remand this matter for
the Board to consider it with the correct understanding of the nature of the Air Force report at
issue.
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) at 4-6.
2
I. BACKGROUND
Appellant served in the Air Force from August 1967 through August 1971.3 Between May
1969 and May 1970, he was stationed at Tuy Hoa Air Base in Vietnam where he served as an
aircraft radio repairman.4 During this time he was assigned to the 31st Tactical Fighter Wing.5
In March 2007, appellant filed a claim seeking service connection for, among other
conditions, PTSD.6 His claim was based on his asserted exposure to combat during a rocket and
mortar attack on the base.7 In June 2007, the regional office (RO) requested that appellant provide
details concerning his claimed stressor.8 The next month, in July 2007, the RO issued a formal
finding that the information appellant had provided was insufficient to request a stressor
verification from the military.9 In August 2007, the RO denied service connection for PTSD
because it determined that there was no corroboration of appellant’s stressor.10 Appellant did not
appeal this decision.
In August 2010, appellant submitted a request to reopen his claim seeking service
connection for PTSD.11 He submitted statements describing the attacks on the air base and
specifically a mortar attack in March or April 1970.12 The RO continued the denial13 and appellant
disagreed with that decision.14
In January 2012, appellant submitted another statement in support of his claim along with
a copy of an Office of Air Force History report entitled Air Base Defense in the Republic of
Vietnam 1961-1973 (the Report).15 Appendix I to the Report included information concerning an
3 R. at 224.
4 See, e.g., R. at 219.
5 Id.
6 R. at 702-11.
7 See R. at 676, 708.
8 R. at 689-90.
9 R. at 646-47.
10 R. at 540-44.
11 R. at 513.
12 R. at 498-99, 501.
13 R. at 444-50.
14 R. at 382-83.
15 R. at 417-20
3
attack on Tuy Hoa Air Base that conformed to appellant’s description of his stressor.16 Meanwhile,
a decision review officer (DRO) was considering appellant’s claim. The DRO issued a rating
decision in March 2012 that granted service connection for PTSD with a 100% disability rating
effective August 30, 2010, the date appellant sought to reopen the claim.17 The DRO stated: “We
have reviewed your military service record which confirms military service in the Republic of
Vietnam during the Vietnam Era. Based on this review and current VA regulations, we have
conceded stress exposure due to your assignment in Vietnam during active military conflict.”18
Appellant disagreed with the effective date the DRO had assigned.19 Eventually the matter
reached the Board. The Board denied an effective date before August 30, 2010, for the award of
service connection for PTSD.20 This appeal followed.
II. ANALYSIS
A. The Legal Landscape
The Court reviews the Board’s assignment of an appropriate effective date for clear error.21
We will reverse a factual finding of the Board when, after reviewing the evidence of record, the
Court is left with “‘a definite and firm conviction that a mistake has been committed.'”22 However,
and importantly for this appeal, the Court reviews legal questions de novo.23 Finally, for all its
findings on a material issue of fact and law, the Board must support its decision with an adequate
statement of reasons or bases that enables a claimant to understand the precise bases for the Board’s
decision and facilitates review in this Court.24 If the Board failed to do so, remand is appropriate.25
16 R. at 418.
17 R. at 315-20.
18 R. at 318.
19 R. at 307-08.
20 R. at 6.
21 Canady v. Nicholson, 20 Vet.App. 393, 398 (2006); see also 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski,
1 Vet.App. 49, 53 (1990).
22 Gilbert, 1 Vet.App. at 53 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
23 Butts v. Brown, 5 Vet.App. 532, 538 (1993) (en banc).
24 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
25 Tucker v. West, 11 Vet.App. 369, 374 (1998).
4
As a general matter, a rating decision that is not placed into appellate status within 1 year
is final.26 A claimant may otherwise reopen such a final decision by submitting new and material
evidence.27 􀹠e effective date for an award on a claim reopened on this basis is usually the date of
receipt of the request to reopen or the date entitlement arose, whichever is later.28
􀹠ere are exceptions to this general rule, among them 38 C.F.R. § 3.156(c). Subsection
(c)(1) states, in relevant part:
[A]t any time after VA issues a decision on a claim, 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, not withstanding paragraph (a) of this section.[29]
Subsection (c)(3) in turn states that, should an award be granted because of records obtained via
part (1), the award “is effective on the date entitlement arose or the date VA received the previously
decided claim, whichever is later.”30 􀹠e purpose of subsection (c) is “to place a veteran in the
position he [or she] would have been had . . . VA considered the relevant service department record
before the disposition of [the] earlier claim.”31
But there is also an exception to the exception in § 3.156(c)(1), (3), so to speak. Subsection
(c)(2) provides that
26 See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2019).
27 See 38 C.F.R. § 3.156(a). As part of the passage of the Veterans Appeals Improvement and Modernization Act of
2017, VA no longer reopens claims based on “new and material evidence.” Pub. L. 115-55, 131 Stat. 1105 (Aug. 23,
2017). That language is derived from the pre-Act version of the applicable regulation. See 38 C.F.R.
§§ 3.156(a), 3.2400 (2019) (explaining that claims filed before the effective date of the Act are “legacy appeals” to be
analyzed under VA’s traditional process, and claims filed after that date are to be adjudicated under a modernized
appeal system); 84 Fed. Reg. 2449 (Fed. 7, 2019) (stating the effective date of the Act is February 19, 2019).
Appellant’s claim was adjudicated under the legacy appeals system and, thus, the “new and material evidence” standard
applies here.
28 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(ii)(B)(2)(i), (r) (2019). If new and material evidence is received by VA
adjudicators within the time to appeal a decision, such evidence must be added to the evidence of record at the time
of such decision, and the claim must be reconsidered on the totality of the original evidence and the new and material
evidence received within the appeal period. 38 C.F.R. § 3.156(b). Section 3.156(b) is not relevant to this appeal
because new and material evidence was not received by VA within the time to appeal the initial decision.
29 38 C.F.R. § 3.156(c)(1).
30 38 C.F.R § 3.156(c)(3).
31 Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014); New and Material Evidence, 70 Fed. Reg. 35,388,
35,389 (June 20, 2005) (proposed rule) (stating that revised § 3.156(c) will “allow VA to reconsider decisions and
retroactively evaluate a disability in a fair manner, on the basis that a claimant should not be harmed by an
administrative deficiency of the government”); see also Pacheco v. Gibson, 27 Vet.App. 21, 32-33 (2014) (en banc)
(Pietsch, J., concurring) (noting that subsection (c) “is an exception to finality”).
5

paragraph (c)(1) of this section does not apply to records that VA could not have
obtained when it decided the claim because the records did not exist when VA
decided the claim, or because the claimant failed to provide sufficient information
for VA to identify and obtain the records from the respective service department,
the Joint Services Records Research Center, or from any other official source.[32]
B. The Board’s finding that the Report is not a service department record is clearly wrong.
􀹠e Board determined that the earliest effective date for the award of service connection
for PTSD was the date appellant submitted a request to reopen the VA’s previous denial, August
30, 2010.33 􀹠e Board recognized appellant’s argument that his submission of the Report triggered
§ 3.156(c) but rejected that argument on two alternative grounds. First, the Board determined that
under that regulation the Report was not an “official service department record[]”.34 Second, the
Board determined that appellant had failed to provide sufficient information to allow VA to search
for his stressor, and so subsection (c)(2) precluded the assignment of an earlier effective date.35
􀹠e Secretary concedes that the Board erred when it determined that the Report is not an
“official service department record” within the meaning of 38 C.F.R. § 3.156(c).36 We accept the
Secretary’s concession that the Report is such a service department record. 􀹠e Board provided no
reason for concluding that the document commissioned and maintained by a service department is
not a service department record. Moreover, as appellant points out, the Air Force itself treats a similar report concerning air bases in 􀹠ailand during the Vietnam era as an official department record.37
Based on the Secretary’s concession and our independent review, we reverse the Board’s decision that the Air Force Report is not a “service department record[]” for purposes of 38 C.F.R. § 3.156(c). Having reached this conclusion, we now turn to remedy.
C. The appropriate remedy is to remand this matter.
Appellant strenuously argues that we should order an effective date based on the filing of
his original claim, and also that we should issue a precedential decision so that other veterans can
32 38 C.F.R. § 3.156(c)(2).
33 R. at 5-6.
34 R. at 5.
35 R. at 5-6.
36 See Secretary’s Brief (Br.) at 5.
37 See Appellant’s Br. at 17-19 (discussing the Base Defense in Thailand -1968-1972, Project CHECO Report).
6
obtain the benefits of the Secretary’s concession about the Report.38 While we appreciate his
position, we don’t agree with appellant on either score.
To begin with, remand is the appropriate remedy here. Our reversal of the Board’s decision
that the Report is not a service department record takes care of matters under § 3.156(c)(1).
However, the question remains whether subsection (c)(3) operates to allow for an earlier effective
date. It is not enough that new service department records are associated with the file. A claimant
is entitled to an earlier effective date under subsection (c)(3) only if an award is “based all or in
part on the records identified by paragraph (c)(1).”39 􀹠e Board did not discuss whether this
condition was met here. And there is at a minimum ambiguity in the rating decision that led to the
Board’s decision whether the Report was used. 􀹠e DRO stated that VA had “conceded stress
exposure due to [appellant’s] assignment in Vietnam during active military conflict.”40 On remand,
the Board will need to make the factual determination whether the Report (which it must take as a
service department record) was used as part of the decision to grant service connection for PTSD.
We will also set aside the Board’s decision based on subsection (c)(2) that appellant had
not provided sufficient information for VA to search for records corroborating his claimed stressor.
First, while the Board framed that decision as an alternative to its determination that the Report
was not a service department record,41 it’s not clear what effect the Board’s error had on its analysis
under subsection (c)(2). Moreover, even leaving that point aside, the Board’s statement of reasons
or bases for its determination is not adequate. 􀹠e record in 2007 contained information about
appellant’s unit, base, and the relevant period during which he served in Vietnam.42 It’s not clear
what more would be required, and we have held that less information was sufficient to trigger VA’s
duty to search for confirmatory evidence of a stressor.43 On remand, the Board must fully explain
the bases for any negative determination it makes under 38 C.F.R. § 3.156(c)(2).
38 See generally Appellant’s Reply Br.
39 38 C.F.R. § 3.156(c).
40 R. at 318.
41 See R. at 5-6.
42 See, e.g., R. at 646-47.
43 See, e.g., Mahyue v. Shinseki, 24 Vet.App. 273, 280 (2011); see also Gagne v. McDonald, 27 Vet.App. 397, 404
(2015) (duty to assist requires as many requests as are necessary to cover the “relevant service period”).
7
􀹠is leaves appellant’s argument that the Court should issue a precedential decision in order
to provide relief to veterans in other cases.44 􀹠e Court understands appellant’s desire to assist his
fellows in arms. However, this matter is not procedurally well positioned for a precedential
decision. 􀹠e Secretary has conceded on the issue appellant seeks precedent. 􀹠at means there is
nothing in dispute about it. After that concession, what remains is a Board decision that is fatally
affected by the conceded error, requiring a remand for additional proceedings. We have carefully
considered appellant’s argument, but ultimately reject it.45
D. Appellant’s Rights on Remand
Because the Court is remanding this matter to the Board for readjudication, the Court need
not address any remaining arguments now, and appellant can present them to the Board.46 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA’s postremand notice.47 The Board must consider any such additional evidence or
argument submitted.48 The Board must also proceed expeditiously.49
III. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court
REVERSES the Board’s determination that the Air Force report entitled Air Base Defense in the
Republic of Vietnam 1961-1973 is not a service department record contemplated under 38 C.F.R.
§ 3.156(c). We SET ASIDE the July 30, 2018, Board decision and REMAND this matter for
further proceedings consistent with this decision, including but not limited to considering
appellant’s claims with the proper understanding of the Air Force report.
DATED: February 20, 2020
Copies to:
Shannon L. Brewer, Esq.
VA General Counsel (027)
44 See Appellant’s Reply Br. at 2-4.
45 See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
46 Best v. Principi, 15 Vet.App. 18, 20 (2001).
47 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
48 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
49 38 U.S.C. §§ 5109B, 7112.

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