Veteranclaims’s Blog

April 13, 2020

Single Judge Application; 38 C.F.R. § 3.400(q)(2), (r); however, different rules apply when the evidence newly presented to VA consists of service department records; Subsection (c) of § 3.156 provides: Notwithstanding any other section in this part, at 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, notwithstanding paragraph (a) of this section;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-3046
DOUGLAS C. BREWER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Senior Judge: The appellant, Douglas C. Brewer, through counsel, appeals
a January 15, 2019, Board of Veterans’ Appeals (Board) decision that denied an effective date
earlier than March 29, 2007, for the grant of service connection for post-traumatic stress disorder
(PTSD). Record (R.) at 4-12. Because the Board failed to provide adequate reasons or bases for
its decision, the Court will vacate the January 2019 Board decision and remand the matter for
further adjudication consistent with this decision.
I. BACKGROUND
Mr. Brewer served in the U.S. Coast Guard from September 1970 to March 1975. R. at

  1. While in service, he was subject to a court-martial for being absent from his duties without
    leave (AWOL). R. at 347, 351. He was convicted of a violation of the Uniform Code of Military
    Justice, sentenced to perform hard labor without confinement for 60 days, and discharged under
    honorable conditions. R. at 372, 1515.
    1 Judge Schoelen is a Senior Judge acting in recall status. In re: Recall of Retired Judge, U.S. VET. APP. MISC.
    ORDER 04-20 (Jan. 2, 2020).
    2
    In June 2004, the appellant submitted a disability compensation claim for, among other
    things, PTSD. R. at 1948. A May 11, 2005, rating decision denied the claim. R. at 1624-32. The
    appellant filed a Notice of Disagreement, but did not perfect his appeal, and the decision became
    final. R. at 1621, 1624-32.
    In March 2007, the appellant submitted a statement related to an alleged traumatic incident
    that occurred aboard his Coast Guard vessel, and submitted records related to his court-martial.
    R. at 345-80, 1558-60. The RO treated the submission as a request to reopen his PTSD claim, and
    denied the claim in August 2007. R. at 1530-33.
    Following multiple new-evidence submissions and rating decisions, the appellant testified
    before the Board on June 24, 2015. R. at 547-64. During his Board hearing, he testified that his
    PTSD was related to “harassment by a very particular officer on the U.S.S. Jarvis.” R. at 550-56.
    On August 18, 2015, the Board determined that the appellant’s reports of harassment aboard the
    U.S.S. Jarvis were competent and credible, and granted him service connection for PTSD. R. at
    322-37.
    In December 2015, the RO implemented the Board’s decision and assigned an effective
    date for the appellant’s PTSD of March 29, 2007 – the date he requested the claim to be reopened.
    The appellant perfected his appeal in March 2017. R. at 31.
    In the decision on appeal, the Board considered whether the provisions of 38 C.F.R.
    § 3.156(c) are applicable to this case. R. at 9. The Board noted that the appellant had submitted
    copies of his military personnel records after the May 2005 rating decision, but determined that
    “those records are duplicative of the evidence associated with the claims file at the time of the May
    2005 rating decision,” and that the “prior rating decision specifically noted that the personnel (201)
    file was considered.” Id. The Board further noted that “the claim was ultimately reopened and
    granted based on the receipt of additional evidence establishing a current diagnosis and nexus to
    service.” Id. Accordingly, the Board determined that 38 C.F.R. § 3.156(c) does not provide a
    basis for an earlier effective date. Id. This appeal followed.
    II. ANALYSIS
    “A claimant may reopen a finally adjudicated claim by submitting new and material
    evidence.” 38 C.F.R. § 3.156(a) (2007). The effective date of benefits granted upon the reopening of a claim under § 3.156(a) is generally the date the claim to reopen is received, 38 C.F.R.
    3
    § 3.400(q)(2), (r); however, different rules apply when the evidence newly presented to VA consists of service department records. Subsection (c) of § 3.156 provides:
    Notwithstanding any other section in this part, at 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, notwithstanding paragraph (a) of this section.

    38 C.F.R. § 3.156(c)(1). The regulation further specifies that such service records include those “that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met.” § 3.156(c)(1)(i). “An award made based all or in part” on such records will be “effective on the date entitlement arose or the date VA received the previously decided claim, whichever is
    later.” § 3.156(c)(3).
    Before deciding a claim, the Board is required to consider all relevant evidence of record
    and to consider and discuss in its decision all “potentially applicable” provisions of law and
    regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver
    v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). In addition, the Board is required to
    provide a written statement of the reasons or bases for its findings and conclusions, adequate to
    enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate
    review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert
    v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
    The appellant argues that the Board failed to adequately analyze whether 38 C.F.R.
    § 3.156(c) applied to his earlier-effective-date claim. Appellant’s Brief (Br.) at 4-5. More specifically, he asserts that when he sought to reopen his claim for service connection for PTSD in March 2007, he submitted additional evidence consisting of special court-martial records, newspaper clippings, and other supporting documents, and that, contrary to what the Board stated, these documents are not duplicative of his military personnel records that were associated with the
    claims file in May 2005. Id. at 7-8 (noting that the court-martial documents located in the record at pages 347 to 425 are not located anywhere else in the record). The appellant avers that by ignoring these records, the Board implicitly found that the award of service connection for PTSD was not based at all or in part on those records. Id. at 8.
    4
    The Secretary concedes that the records of the appellant’s special court-martial were not
    associated with the claims file prior to March 2007 and that these records constitute official service
    department records as contemplated by 38 C.F.R. § 3.156(c). Secretary’s Br. at 9. However, the
    Secretary argues that the special court-martial records are not “relevant” as per the regulation, and
    any finding by the Board that the records were duplicative was therefore harmless error. Id. The
    Secretary argues that the special court-martial is not relevant because the special court-martial
    records do not refer to any incidents of “harassment” that he experienced while aboard the U.S.S.
    Jarvis. Id. at 11.
    In the decision on appeal, the Board determined that 38 C.F.R. § 3.156(c) does not provide
    a basis for an earlier effective date. R. at 9. The Board noted submission of the appellant’s military
    personnel records after the May 2005 rating decision, but determined that “those records are
    duplicative of the evidence associated with the claims file at the time of the May 2005 rating
    decision,” and that the “prior rating decision specifically noted that the personnel (201) file was
    considered.” Id. The Board also noted that “the claim was ultimately reopened and granted based
    on the receipt of additional evidence establishing a current diagnosis and nexus to service.” Id.
    The Court agrees with the appellant that the Board’s statement of reasons or bases frustrates
    judicial review. It is undisputed by the parties that the Board erred in finding the appellant’s March
    2007 evidentiary submission duplicative of records previously associated with his claims file. It
    is also undisputed that 38 C.F.R. § 3.156(c) is applicable under these circumstances, and that the
    Board did not conduct the proper analysis because it found that the records were duplicative.
    Despite the Secretary’s assertions that this Court should analyze the March 2007 evidentiary
    submission, determine it does not contain any evidence that is relevant under the regulation, and
    find harmless error, it is the province of the Board to assess and weigh the evidence of record in
    the first instance, not this Court. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006)
    (stating that as finder of fact, the Board has the duty to weigh the evidence in the first instance);
    Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing
    the credibility and weight of evidence and that the Court may overturn the Board’s decision only
    if it is clearly erroneous). Accordingly, the Court will remand the matter for the Board to provide
    an adequate assessment of the appellant’s March 2007 submission. Tucker v. West, 11 Vet.App.
    369, 374 (1998) (holding that remand is the appropriate remedy “where the Board has incorrectly
    5
    applied the law, failed to provide an adequate statement of reasons or bases for its determinations,
    or where the record is otherwise inadequate”).
    Given this disposition, the Court will not address the other arguments and issues raised by
    the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a]
    narrow decision preserves for the appellant an opportunity to argue those claimed errors before the
    Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule
    against him”). The appellant is free on remand to submit additional evidence and argument,
    including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v.
    West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such
    evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court
    reminds the Board that “[a] remand is meant to entail a critical examination of the justification for
    [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed
    in an expeditious manner in accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    After consideration of the appellant’s and the Secretary’s pleadings, and after a review of the record, the Board’s January 15, 2019, decision is VACATED and the matter is REMANDED
    for further proceedings consistent with this decision.
    DATED: April 10, 2020
    Copies to:
    Jacques P. DePlois, Esq.
    VA General Counsel (027)

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.