Veteranclaims’s Blog

September 26, 2020

Single Judge; The March 1989 rating decision does not mention the Medical Evaluation Board [MEB] subsection (c) “is an exception to finality”); 38 C.F.R. § 3.156(c). Subsection (c)(1) states, in relevant 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) (2020); Board must determine when the MEB or PEB reports were associated with appellant’s claim file, assuming they were, then the Board will need to conduct the effective-date analysis § 3.156(c)(3) requires; should the Board conclude that these documents have never been associated with the claims file, it should take the appropriate steps to do so and then proceed to reconsider the claim as § 3.156(c)(1) mandates;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7041
ROBERT G. ZEEK, 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: Self-represented appellant Robert G. Zeek served the Nation honorably in
the United States Army. In this appeal, which is timely and over which the Court has jurisdiction,1
he contests a June 17, 2019, decision of the Board of Veterans’ Appeals that denied him entitlement to an effective date before May 11, 2015, for the grant of service connection for lumbosacral strain (back disability) and major depressive disorder (MDD).2 Because the Board applied the correct legal principles, provided an adequate statement of reasons or bases for its decision, and did not clearly err in reaching its factual findings, we will affirm the denial of an earlier effective date for MDD. However, because the Board failed to consider whether appellant could be entitled to an
earlier effective date under 38 C.F.R. § 3.156(c) with respect to his back disability, we will set aside the decision on that claim and remand it for further proceedings.
I. BACKGROUND
Appellant served on active duty in the Army from July 1986 to August 1986 and from
April 1987 to August 1988.3 On September 23, 1988, appellant filed a claim seeking service
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) at 5-12.
3 R. at 2590, 2978-79.
2
connection for “spondylol[is]thesis/lower back pain.”4 In his application he sought compensation
for no other condition. A March 1989 rating decision denied the claim.5 Appellant did not appeal
this decision.
In 1996, appellant filed a claim seeking service connection for spondylolisthesis.6 He did
not seek benefits for any other condition. VA treated this claim as a request to reopen the March
1989 denial of service connection for his back disability. In a January 1997 rating decision, a
regional office (RO) denied the construed request to reopen.7 Appellant did not appeal this
determination.
In 2002, appellant again sought to reopen his claim for service connection for
spondylolisthesis that had been denied in the March 1989 rating decision. He did not seek benefits
for any other condition. An RO denied reopening in December 2002.8 Once again, appellant did
not appeal.
On May 29, 2015, appellant submitted a form indicating his intent to file a claim for service
connection for lumbosacral strain and a claim for MDD.9 Appellant submitted a formal claim for
these conditions on November 27, 2015.10 VA treated the lumbosacral strain claim as one to reopen
the March 1989 denial and the MDD claim as an initial claim for service connection. A May 2016
rating decision reopened the lumbosacral strain claim and granted service connection rated 40%
disabling, effective November 27, 2015.11 The decision also granted service connection for MDD
rated 50% disabling, effective November 27, 2015.12
Appellant disagreed with the decision with respect to both the effective dates assigned as
well as the disability ratings awarded for both of his now service-connected disabilities.13 VA
issued a Statement of the Case continuing the disability ratings for both conditions, but assigning
4 R. at 3334-37.
5 R. at 3315-17.
6 R. at 3045-48.
7 R. at 3024-26.
8 R. at 2994-98.
9 R. at 2987-88.
10 R. at 2839-41.
11 R. at 2575-80.
12 Id.
13 R. at 2530-32.
3
them effective dates of May 11, 2015, the date appellant indicated his intent to file a formal claim.14
Appellant abandoned his appeal as to the disability ratings he had been assigned and pressed his
appeal only about the appropriate effective date for service connection for his back disability and
MDD.15 This led to the June 17, 2019, Board decision before us in this appeal.
II. ANALYSIS
Because he is proceeding pro se, we construe appellant’s informal brief liberally. 16
Appellant argues that the Board erred because it did not address whether Medical Evaluation Board
(MEB) and Physical Evaluation Board (PEB) reports were considered when he submitted his initial
claim for a back disorder. He doesn’t make a specific argument about the assignment of an effective
date for MDD, so we will construe his brief as alleging general error in that regard. We will first
lay out the general legal principles that guide our decision. We will then consider each claim in
turn.
A. The Legal Landscape
Generally, the effective date of an award of service connection for an initial claim is
assigned based on the facts found, but shall not be earlier than the date of receipt of an application
for compensation.17 An effective date cannot be awarded before the date of the filing of a formal
claim.18 However, there is an exception if a claimant filed an informal claim19 and he or she submitted a formal claim within one year of the submission of the informal claim.20 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
14 R. at 56-63.
15 R. at 26.
16 See Calma v. Brown, 9 Vet.App. 11, 15 (1996); De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992).
17 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2) (2019).
18 38 C.F.R. § 3.400(b).
19 As of September 25, 2015, VA no longer recognizes informal claims. See 79 Fed. Reg. 57,660-01 (2015). In their place, VA recognizes an intent to file a claim,” which may be submitted electronically, on a prescribed intent-to-filea-claim form, or through an oral communication to certain VA employees that is later recorded in writing. 38 C.F.R. § 3.155(b)(1)(i)(iii) (2019).
20 38 C.F.R. § 3.155.
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).
4
“‘a definite and firm conviction that a mistake has been committed.'”22 The Court reviews legal questions de novo.23
The effective date rules are somewhat different when dealing with the reopening of a
previously denied claim. As a general matter, a rating decision that is not placed into appellate
status within one year is final.24 A claimant may otherwise reopen such a final decision by submitting new and material evidence.25 􀹠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.26
􀹠ere are exceptions to this general rule, among them 38 C.F.R. § 3.156(c). Subsection
(c)(1) states, in relevant 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
.27

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.”28 􀹠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.”29
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 See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2020).
25 See 38 C.F.R. § 3.156(a). Under 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) (2019); 38 C.F.R. § 3.2400
(2019) (explaining that claims before the effective date of the Act are “legacy appeals” to be analyzed under VA’s
traditional process and claims after that date are to be adjudicated under a modernized appeal system); 84 Fed. Reg.
2449 (Feb. 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.
26 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(ii)(B)(2)(i), (r) (2019).
27 38 C.F.R. § 3.156(c)(1) (2020).
28 38 C.F.R § 3.156(c)(3).
29 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 disability in a fair manner, on the basis that a claimant should not be harmed by an administrative
deficiency of the government”); see also George v. Wilkie, 32 Vet.App. 318, 324 (2020) (describing operation of
section 3.156(c)); Pacheco v. Gibson, 27 Vet.App. 21, 32-33 (2014) (en banc) (Pietsch, J., concurring) (noting that
5
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.30 If the Board failed to do so, remand is appropriate.31
B. Effective Date for MDD
As noted above, appellant doesn’t raise a specific argument about the Board’s denial of an
effective date before May 11, 2015, for service connection for MDD. We have carefully reviewed
the record and the Board’s decision on this issue. There is no evidence in the record that appellant
submitted a claim for MDD before his informal claim for that condition in May 2015. He submitted
a formal claim within 1 year of his informal claim, so the earliest date for service connection is the
date of the informal claim.32 Appellant does not suggest that he filed a claim for benefits related
to MDD before he noted his intent to do so in May 2015. And our independent review of the record
has not disclosed anything that could be construed as such a claim.33 So, we will affirm the Board’s
decision on this issue because the law does not allow an effective date earlier than the one the
Board awarded.34
C. Effective Date for Back Disability
The Secretary concedes that remand is required with respect to the Board’s decision on the
effective date for service connection for appellant’s back disability.35 We agree with the Secretary.
Appellant argues that that MEB and PEB reports were not before the adjudicator in March
1989 when VA first denied his back disability claim.36 As the Secretary notes in his supplemental brief, appellant appears to be correct.37 The March 1989 rating decision does not mention the MEB subsection (c) “is an exception to finality”).
30 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
31 Tucker v. West, 11 Vet.App. 369, 374 (1998).
32 38 C.F.R. § 3.155.
33 See Shea v. Wilkie, 926 F.3d 1362, 1368-69 (Fed. Cir. 2019).
34 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(ii)(B)(2)(i), (r).
35 See Secretary’s Supplemental Brief (Br.) at 9. We ordered the Secretary to submit a supplemental brief specifically
addressing the application of 38 C.F.R. § 3.156(c), which is critical to the resolution of this issue. We thank the
Secretary’s counsel for his supplemental brief. It has been of great use to the Court.
36 See Appellant’s Informal Br. at 1-3.
37 See Secretary’s Supplemental Br. at 9-10.
6
reports as being among the evidence the RO considered.38 More tellingly, the decision specifically
states that “PEB findings are not of record.”39 And there is no indication that the MEB and PEB
reports were before the adjudicators when appellant sought to reopen his claims in 1997 and
2002.40 In fact, it is not clear whether these records were even before VA at the time the RO granted
service connection for the back disability in May 2016.41
As noted above, when VA renders a decision before “relevant service department records”
are associated with the claims file and then subsequently receives those records, VA “will
reconsider the claim.”42 And after such reconsideration, should VA award benefits “based all or in
part” on such records, the award of benefits “is effective on the date entitlement arose or the date
VA received the previously denied claim, whichever is later.”43 As the Federal Circuit has made clear, for a veteran whose service records were not provided to VA, § 3.156(c) serves to put the veteran in the same position he or she would have occupied without this omission.44
We must remand this matter to the Board because it did not consider § 3.156(c). The Board must determine when the MEB or PEB reports were associated with appellant’s claim file, assuming they were. If they were, then the Board will need to conduct the effective-date analysis § 3.156(c)(3) requires. And should the Board conclude that these documents have never been
associated with the claims file, it should take the appropriate steps to do so and then proceed to
reconsider the claim as § 3.156(c)(1) mandates
.
Because the Court is remanding appellant’s claim for an earlier effective date for his back
disability to the Board for readjudication, the Court need not address any remaining arguments
about that matter now, and appellant can present them to the Board.45 On remand, appellant may
submit additional evidence and argument and has 90 days to do so from the date of VA’s
38 R. at 3315-17.
39 R. at 3316.
40 R. at 2997 (Dec. 2002 rating decision), 3025 (Jan. 1997 rating decision).
41 R. at 2575-80.
42 38 C.F.R. § 3.156(c)(1).
43 38 C.F.R. § 3.156(c)(3).
44 Blubaugh, 773 F.3d at 1313.
45 Best v. Principi, 15 Vet.App. 18, 20 (2001).
7
postremand notice. 46 The Board must consider any such additional evidence or argument
submitted.47 The Board must also proceed expeditiously.48
III. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the Board’s June 17, 2019, decision concerning appellant’s claim for an effective date
before May 11, 2015, for a lumbosacral strain, and REMANDS that matter for the Board to
consider the application of 38 C.F.R. § 3.156(c) and for other proceedings consistent with this
decision. We AFFIRM the Board’s decision denying an effective date before May 11, 2015, for
major depressive disorder.
DATED: September 25, 2020
Copies to:
Robert G. Zeek
VA General Counsel (027)
46 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
47 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
48 38 U.S.C. §§ 5109B, 7112.

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.