Veteranclaims’s Blog

November 8, 2021

Single Judge Application; Ortiz v. McDonough; The Federal Circuit comprehensively considered whether the 2010 amendment to 38 C.F.R. § 3.304(f) was liberalizing, ultimately determining that it was, Ortiz v. McDonough, 6 F.4th at 1275-1283, 2021 U.S. App. LEXIS 22305, at *16-38; The Federal Circuit specifically disapproved of this Court’s decision in Foreman, Ortiz v. McDonough, 6 F.4th at 1275-1283, 2021 U.S. App. LEXIS 22305, at *35-38;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0070
GERALDO P. ORTIZ, APPELLANT,
V.
DENIS MCDONOUGH,
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 Geraldo Ortiz 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
September 11, 2018, Board of Veterans’ Appeals decision that denied an effective date before May
22, 2012, for service connection for PTSD with major depressive disorder.2
As background, in May 2012, appellant sought to reopen a previously denied claim for
service connection for PTSD.3 After development, VA reopened the claim and granted appellant
service connection for PTSD, rated 100% disabling, effective the date of his claim to reopen, May
22, 2012.4 Appellant sought an earlier effective date for service connection, a disagreement that
led to the Board decision on appeal.
In its decision, the Board determined that appellant was not entitled to an effective date for
his award of service connection earlier than the date he filed his claim to reopen.5 The Board
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) at 4-10.
3 R. at 310, 312-13.
4 R. at 234-40.
5 R. at 7.
2
(correctly, we add) stated that the general rule is that appellant was entitled to an effective date
based on the date his claim to reopen was received or the date entitlement arose, whichever was
later.6 The Board then considered whether any exception to that general rule applied that could
afford appellant an earlier effective date. Of relevance here, the Board recognized that appellant’s
claim was granted based on a change in VA’s regulations concerning establishing an in-service
PTSD stressor.7
The change the Board was referring to concerned an amendment to 38 C.F.R. § 3.304(f)
that took effect in July 2010.8 The specific change was the addition of subsection (f)(3), which
allowed a veteran’s lay statements alone to support the occurrence of a stressor in certain
circumstances in which a VA mental health professional diagnosed PTSD and the claimant’s
stressor concerned a fear of hostile military or terrorist activity.9 Appellant benefited from this
change.10 And it is relevant to his claim for an earlier effective date because, if the addition of
section 3.304(f)(3) is deemed a “liberalizing law,” he could be entitled to an effective date before
the date of his claim.11
As alluded to above, the Board recognized the significance of the addition of subsection
(f)(3).12 However, it concluded that appellant could not use the “liberalizing law” effective-date
provisions to support his claim because the 2010 amendment adding §3.304(f)(3) was not a
liberalizing law.13 At the time of its decision, the Board was on solid ground for this conclusion
because in Foreman v. Shulkin, this Court squarely held that the 2010 amendment did not qualify
as a liberalizing law.14 Indeed, the Board cited Foreman for this principle.15 Appellant appealed
the Board’s decision.
6 R. at 6 (citing 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)) (2018)).
7 R. at 7.
8 See Stressor Determination for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010).
9 Id.; see 38 C.F.R. § 3.304(f)(3) (2018).
10 See R. at 7.
11 See 38 C.F.R. § 3.400(p); see also 38 C.F.R. § 3.114 (2021).
12 R. at 7-8.
13 Id.
14 29 Vet.App. 146, 150 (2018).
15 R. at 8.
3
In a March 12, 2020, memorandum decision, the Court affirmed the Board’s decision.16
We determined that Foreman was binding on us and foreclosed appellant’s argument. Appellant
appealed to the Federal Circuit. The Federal Circuit reversed our decision.17 The Federal Circuit
comprehensively considered whether the 2010 amendment to 38 C.F.R. § 3.304(f) was
liberalizing, ultimately determining that it was.18 The Federal Circuit specifically disapproved of
this Court’s decision in Foreman.19
The court remanded for implementation of its decision.
As dictated by the Federal Circuit’s decision in this matter, we REVERSE the September
11, 2018, Board decision and REMAND this matter for the Board to assign the appropriate
effective date for service connection for appellant’s PTSD, based on the Federal Circuit’s finding
that the 2010 amendment to 38 C.F.R. § 3.304(f) constitutes a liberalizing law.
DATED: September 30, 2021
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
16 Ortiz v. Wilkie, No. 19-0070, 2020 U.S. App. Vet. Claims LEXIS 412 (Mar. 12, 2020) (mem. dec.), rev’d sub nom.
Ortiz v. McDonough, 6 F.4th 1267, 2021 U.S. App. LEXIS 22305 (Fed. Cir. 2021).
17 Ortiz v. McDonough, 6 F.4th 1267, 2021 U.S. App. LEXIS 22305.
18 Id., 6 F.4th at 1275-1283, 2021 U.S. App. LEXIS 22305, at *16-38.
19 Id., 6 F.4th at 1283, 2021 U.S. App. LEXIS 22305, at *35-38.

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.