Veteranclaims’s Blog

December 13, 2021

Single Judge Application; what constitutes “reconsideration” under § 3.156(c)(1); “Exactly what would satisfy the reconsideration required is a gray area under existing law.” George v. Shulkin, 29 Vet.App. 199, 205 (2018), vacated on other grounds sub nom. George v. Wilkie, _ F. App’x _, No. 2018-1736, 2019 WL 4010813 (Fed. Cir. Aug. 26, 2019). But “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-4850
PRINCESS DIANE HUDSON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Princess Diane Hudson, the surviving spouse of veteran Donald J. Hudson,
was permitted by VA to be substituted for him as the claimant when he passed away. She appeals
a Board decision that denied an effective date earlier than September 9, 2010, for the award of
service connection for PTSD based on clear and unmistakable error (CUE). The Board concluded
that the VA regional office (RO) did not commit CUE in a March 2011 decision by not applying
38 C.F.R. § 3.156(c) because VA had exhausted any duty under that regulation to “reconsider” the
PTSD claim more than 20 years earlier. Under the deferential standards applicable in CUE appeals,
the Court affirms the Board’s conclusion. Moreover, the Court has no jurisdiction to consider a
§ 3.156(b) argument that Mrs. Hudson raised for the first time on appeal to the Board (and which
the Board did not address) because she was required to raise such a distinct CUE argument before
the RO.
I. BACKGROUND
Donald Hudson served in the Air Force from April 1971 to July 1974. He first sought
disability compensation for PTSD in 1989, alleging various stressors suffered while he was
stationed in Vietnam. The RO denied the claim in a July 1990 decision. It reviewed service medical
2
records but found that, although “the veteran’s history as he relates it [was] a convincing one,” the
absence of any indication in those records of service in Vietnam “rebut his contentions” and
prevented them from being verified. R. at 2313. He disagreed with this decision. VA
acknowledged in a Statement of the Case that a personnel record showed him present at Bien Hoa
Air Base, Vietnam, in 1972, but it continued to deny the claim, finding that the evidence did not
“confirm that he experienced stressful events [that] would support a diagnosis of PTSD.” R. at
2304.
In March 1991, VA received a response to an earlier inquiry from the U.S. Army & Joint
Services Environmental Support Group. The letter, accompanied by excerpts from a publication,
Air Base Defense in the Republic of Vietnam 1961-1973, indicated that there were “attacks on Cam
Ranh Bay and Bien Hoa Air Base during the time frame specified in Mr. Hudson’s claim.”1 R. at

  1. The Court refers to these documents collectively as “the Air Force report.”
    VA issued a confirmed rating decision in June 1991, concluding that the Air Force report
    did not warrant a change in its earlier denial as it did not verify the veteran’s alleged stressors. See
    R. at 2290. The letter notifying the veteran of the RO’s decision advised that it once again “denied”
    his PTSD service-connected claim “because the U.S. Army and Joint Services Environmental
    Support Group was unable to verify your alleged stressors while stationed in the Republic of
    Vietnam.” R. at 2289. The veteran took no action in response to this notice, save for an
    unsuccessful request to reopen filed in 2007.
    Mr. Hudson filed a claim to reopen again in 2010. In a March 2011 decision, after obtaining
    a 2009 VA treatment record diagnosing PTSD and a favorable 2011 VA etiology opinion, the RO
    granted service connection for PTSD with a 50% rating, effective September 9, 2010. The effective
    date was the date VA received the claim to reopen entitlement to PTSD. A few months after this
    decision, the veteran’s wife attempted to raise an issue with the PTSD award. VA promptly advised
    the veteran that Mrs. Hudson could not request VA action, as there was no record that she had his
    power of attorney. VA further advised that it would not take any action unless it received
    something from the veteran or from the American Legion, which at that time held his power of
    attorney.
    1 This work was published in 1979 by the Air Force’s Office of Air Force History. It is available online at
    http://media.defense.gov/2010/Sep/21/2001330253/-1/-1/0/AFD-100921-023.pdf.
    3
    More than four years passed before Mr. Hudson filed something. In a September 2015
    submission, he asked for an increased PTSD rating and sought to revise two separate RO decisions
    on the basis of CUE. First, he argued that the July 1990 rating decision committed CUE because
    sufficient evidence was of record at that time to confirm a PTSD diagnosis, verify his presence in
    Vietnam and alleged stressors, and to link PTSD to these events, thereby satisfying the legal
    requirements for disability compensation. Second, he argued that the March 2011 rating decision
    committed CUE when it failed to apply § 3.156(c) and award him a 1989 PTSD effective date.
    The RO assigned a 70% PTSD rating but rejected the veteran’s CUE arguments for an
    earlier effective date. Mr. Hudson retained present counsel and filed a Notice of Disagreement.
    When VA continued its denial, the veteran appealed to the Board, asking for an earlier effective
    date “based either on CUE or on the application of 38 [C.F.R. §] 3.156.” R. at 369 (emphasis
    added). A subsequent brief to the Board reiterated the earlier challenges to the 1990 and 2011
    decisions and introduced a new argument under § 3.156(b), namely, that receipt of the Air Force
    report during the year following the July 1990 decision rendered that decision nonfinal and
    required a 1989 PTSD effective date.
    Mr. Hudson died on March 22, 2018, while his appeal was pending. VA permitted his wife
    to be substituted as the claimant, and she continued to retain her husband’s attorney.
    In the decision on appeal, the Board denied a PTSD effective date prior to September 9,
  2. First, the Board rejected the argument that the evidence before the RO at the time of its July
    1990 decision clearly and unmistakably proved service connection for PTSD. (Mrs. Hudson does
    not challenge this determination.) Second, the Board rejected the argument that the RO clearly and
    unmistakably erred in the March 2011 decision by not applying § 3.156(c). That provision, the
    Board determined, was inapplicable because the Air Force report was not a “service department
    record” triggering VA’s duty under § 3.156(c)(1) to “reconsider” the PTSD claim. R. at 9. The Air
    Force report, the Board reasoned, was not a service medical record, a service personnel record, or
    a service unit record and it did not exist until several years after Mr. Hudson left service.
    Alternatively, even if the Air Force report qualified as a service department record requiring
    reconsideration under § 3.156(c), the Board determined that “[t]he obligation to reconsider the
    claim in light of the receipt of that record was exhausted in June 1991 when it was addressed and
    the claim was again denied on its merits. Therefore, the March 2011 rating decision did not contain
    CUE.” R. at 10. The Board did not address § 3.156(b). This appeal followed.
    4
    II. ANALYSIS
    On appeal, Mrs. Hudson asserts that the Air Force report qualified as a service department
    record trigging the duty under § 3.156(c) to reconsider the veteran’s claim and that this
    reconsideration—which if favorable to the veteran could provide an earlier effective date—never
    took place. She also argues that the Air Force report constituted new and material evidence
    submitted during the appeal period of the original RO decision denying PTSD and that, because a
    Supplemental Statement of the Case was never issued in response to it, the PTSD claim remained
    pending under § 3.156(b) ever since the veteran first filed it in 1989. With respect to both
    provisions, Mrs. Hudson contends that the Board erred by not applying them in the decision on
    appeal. This focus is misplaced. Before explaining why the Board didn’t err in its § 3.156(c)
    analysis and wasn’t permitted to undertake a § 3.156(b) analysis, the Court sets out the legal rules
    applicable in the CUE context and explains why the appellant’s arguments must be assessed, if at
    all, under those CUE standards.
    A. Applicable Legal Standards
    Generally, when “a veteran fails to appeal from an RO decision concerning a claim, the
    decision becomes ‘final,’ and ‘the claim will not thereafter be reopened or allowed.'” Cook v.
    Principi, 318 F.3d 1334, 1336 (Fed. Cir. 2002) (en banc) (quoting 38 U.S.C. § 7105(c)). A veteran
    may, however, collaterally attack an otherwise final RO decision by filing a CUE motion to reverse
    or revise it. Id. at 1337; Hime v. McDonald, 28 Vet.App. 1, 6 (2016). To establish CUE, the veteran
    must show that: (1) the adjudicator either ignored the correct facts in the record or incorrectly
    applied statutes or regulations in effect at the time; (2) the alleged error was undebatable, not
    merely a disagreement as to how the facts were weighed or the law was applied; and (3) the
    commission of the alleged error, at that time, would have manifestly changed the outcome of the
    decision sought to be revised or reversed. Hime, 28 Vet.App. at 6. The Court’s review of a Board
    determination that there was no CUE in a prior final decision “is limited to determining whether
    the Board’s finding was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
    accordance with law.'” George v. Wilkie, 30 Vet.App. 364, 369 (2019) (quoting 38 U.S.C.
    § 7261(a)(3)(A)).
    CUE is “a very specific and rare kind of error . . . that when called to the attention of later
    reviewers compels the conclusion, to which reasonable minds could not differ, that the result
    5
    would have been manifestly different but for the error.” 38 C.F.R. § 3.105(a)(1)(i) (2019). As the
    Court has explained:
    If it is not absolutely clear that a different result would have ensued, based upon the
    facts and law that were understood at the time of the decision, then any error that
    may have occurred in a final Board or RO decision is not clear and unmistakable.
    The Court cannot review a CUE motion under the same standard by which it
    reviews matters on direct appeal. As a result, there will be times when the Court
    arrives at a different conclusion when reviewing a motion to reverse or revise a
    prior, final decision than it would have had the matter been reviewed under the
    standards applicable on direct appeal.
    Evans v. McDonald, 27 Vet.App. 180, 185-86 (2014) (en banc) (citations, quotation marks, and
    brackets omitted).
    The CUE standard frames this appeal because there is no such thing as a “freestanding
    claim” for an earlier effective date. Rudd v. Nicholson, 20 Vet.App. 296, 300 (2006). A claimant
    who wishes to alter a prior, final decision assigning an effective date must do so via a motion to
    reverse or revise it on the basis of CUE. See id. Permitting a freestanding claim—a bare challenge
    to an effective date long after the decision assigning it became settled—would vitiate the rule of
    finality, id., and “Congress did not intend to allow exceptions to the rule of finality in addition to
    . . . [those] it expressly created,” Norton v. Principi, 376 F.3d 1336, 1338 (Fed. Cir. 2004). Such a
    freestanding claim is so improper, we have held, that the Board is precluded from even considering
    it, and a Board decision that does consider it must be vacated. Rudd, 20 Vet.App. at 300.
    To be sure, Congress permits a claim to be readjudicated “as may otherwise be provided in
    such regulations as are consistent with” title 38 of the U.S. Code. 38 U.S.C. § 7105(c)(3); see Cook,
    318 F.3d at 1336. And subsections (b) and (c) of § 3.156 have sometimes been described as
    “exceptions” to the rule of finality. See, e.g., Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed.
    Cir. 2014); Young v. Shinseki, 22 Vet.App. 461, 466 (2009). But this was a description of their
    substantive effect and reach; it did not suggest a change to the requirement that these provisions
    be raised in a procedurally proper way.
    Review of the caselaw reveals only two situations in which courts have entertained a VA
    claimant’s arguments for earlier effective dates based on § 3.156(b) or (c): when a claimant is
    directly appealing a decision assigning an effective date or when a claimant is moving to revise a
    VA decision assigning an effective date based on CUE.2 Thus, whatever their substantive reach,
    2 See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017); Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir.
    6
    nothing in subsections (b) or (c) of § 3.156 expands the procedural avenues available for
    challenging an effective date.
    These procedural limitations are fully applicable here. The effective date for PTSD was
    assigned in a March 2011 RO decision. That decision was not directly appealed. VA’s reevaluation
    of the effective date was occasioned years later by Mr. Hudson’s September 2015 motion to revise
    the March 2011 decision on the basis of CUE, alleging that the RO failed to consider and properly
    apply § 3.156(c). The issue before the Court, then, is not whether the RO should have applied
    § 3.156(c) or whether the Board should have applied § 3.156(c), but whether the Board abused its
    discretion in finding that the RO did not commit undebatable legal error in its March 2011 decision
    by not applying § 3.156(c). The Court will consider Mrs. Hudson’s arguments under these
    standards.
    B. Section 3.156(c)
    At the time of the 2011 decision, § 3.156(c) provided as follows:
    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) (2011). The regulation further specified 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).
    Mrs. Hudson asserts that the Board erred in finding that the Air Force report did not qualify
    as a “service department record.” But even if the Court agreed, it would not affect the Board’s
    alternative finding that, assuming the Air Force report qualified as a service department record,
    VA’s “obligation to reconsider the claim in light of the receipt of that record was exhausted in June
    2014); Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014); Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014);
    Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Jackson v. Nicholson, 449 F.3d 1204 (Fed. Cir. 2006); George v.
    Shulkin, 29 Vet.App. 199 (2018); Emerson v. McDonald, 28 Vet.App. 200 (2016); Mitchell v. McDonald, 27 Vet.App.
    431 (2015); Pacheco v. Gibson, 27 Vet.App. 21 (2014) (en banc); Stowers v. Shinseki, 26 Vet.App. 550 (2014); Cline
    v. Shinseki, 26 Vet.App. 18 (2012); Shipley v. Shinseki, 24 Vet.App. 458 (2011); Mayhue v. Shinseki, 24 Vet.App. 273
    (2011); Buie v. Shinseki, 24 Vet.App. 242 (2011); Vigil v. Peake, 22 Vet.App. 63 (2008).
    7
    1991 when it was addressed and the claim was again denied on its merits.” R. at 10. In reaching
    this conclusion, the Board relied on Blubaugh.
    In that case, after VA initially denied service connection for PTSD, the veteran filed a claim
    to reopen and submitted a Department of the Army (DA) Form 20, which listed his specific dates
    of service in Vietnam. VA reopened the claim, considered the record, but again denied service
    connection. More than a decade later, after the submission of additional evidence, VA reopened
    the PTSD claim, granted service connection, and assigned an effective date based on when it
    received the latest claim to reopen. The veteran appealed the effective date assigned, arguing that
    § 3.156(c) should have been applied and an effective date commensurate with his initial PTSD
    claim assigned because the DA Form 20 was part of the evidence that led to the service-connection
    claim being granted. The Federal Circuit affirmed this Court’s rejection of that argument. In terms
    echoed by the Board decision in this case, the Federal Circuit concluded that “[a]ny obligation the
    VA had to reconsider Mr. Blubaugh’s claim in light of his DA Form 20 was exhausted in 1993
    when it reopened his claim and, despite possessing this newly associated service record, again
    denied Mr. Blubaugh’s claim on the merits.” Blubaugh, 773 F.3d at 1314. That is, because “VA’s
    initial reconsideration under subsection (c)(1) did not result in benefits,” VA was not obliged to
    apply that regulation again in later adjudications. See id.
    Blubaugh is on point. Here, VA received the Air Force report in March 1991, after it had
    originally denied the PTSD claim and issued a Statement of the Case continuing the denial. In
    response to the receipt, VA promulgated a June 1991 confirmed rating decision, which concluded
    that the Air Force report did not warrant a change in its earlier denial because it did not verify his
    stressors. Mr. Hudson was notified of this decision and did not appeal it. Thus, VA fulfilled its
    obligation to reconsider the PTSD claim in June 1991. (This case further tracks Blubaugh, in that
    the original denial of the PTSD claim here appeared to be based on the absence of confirmed
    stressors and a PTSD diagnosis, and evidence of a diagnosis was not added to the claims file until
    2009, R. at 2106, 2304, thus preventing a grant of the PTSD claim when the Air Force report was
    submitted. See 773 F.3d at 1314.)
    Mrs. Hudson disputes that the RO’s June 1991 action qualified as reconsideration of the
    claim under § 3.156(c)(1). Instead, she argues, the RO was required to issue a Supplemental
    Statement of the Case that contained “a summary of the evidence and reasoning” for VA’s denial.
    Appellant’s Br. at 9. But this is where the legal standards applicable in CUE appeals come into
    8
    play. Not long ago, this Court was called upon, also in the CUE context, to consider what
    constitutes “reconsideration” under § 3.156(c)(1). The conclusion: “Exactly what would satisfy the
    reconsideration required is a gray area under existing law.” George v. Shulkin, 29 Vet.App. 199,
    205 (2018), vacated on other grounds sub nom. George v. Wilkie, _ F. App’x _, No. 2018-1736,
    2019 WL 4010813 (Fed. Cir. Aug. 26, 2019). But “given the imprecise definition of ‘reconsider’
    under § 3.156(c)(1)
    ,” and the fact that the issue arose in the context of a collateral attack on an
    otherwise final decision, the Court recognized that its review was limited to “whether the Board’s
    conclusion that reconsideration had occurred in the [earlier] decision was arbitrary, capricious, an
    abuse of discretion, or otherwise not in accordance with law.” Id. at 206 (quotation marks omitted).
    As the earlier decision gathered new evidence and reweighed old evidence, the Court had no
    trouble affirming as “not arbitrary or capricious under the deferential CUE standard” the Board’s
    conclusion “that a proper reconsideration occurred.” Id.
    Here, the Court likewise determines that the Board did not reach an arbitrary, capricious,
    or otherwise improper conclusion in finding that the RO reconsidered the PTSD claim in June
    1991 when it received the Air Force report. True, the RO did not develop new evidence or
    explicitly discuss evidence already of record. But, while George established that these factors were
    sufficient for finding that reconsideration had taken place, it did not establish that they were
    necessary. By its own terms, the June 1991 confirmed rating decision addressed the issue of
    entitlement to service connection for PTSD in light of the Air Force report. It advised that it would
    again deny the claim. And it provided the reason for the denial—the continued absence of stressor
    confirmation. Once again, the issue isn’t whether this adjudication was correct but whether it
    constituted reconsideration. Since there continued to be “uncertainty about the precise contours of
    a reconsideration in the context of § 3.156(c)(1)” at the time of the decision on appeal, id. at 206
    (quotation marks omitted), the Court affirms as not arbitrary, capricious, or an abuse of discretion
    the Board’s determination that there was no CUE in the March 2011 rating decision’s nonapplication
    of § 3.156(c) because had VA fulfilled its reconsideration obligation in the June 1991
    confirmed rating decision.3
    3 The Court rejects as meritless Mrs. Hudson’s contention that the Board did not provide adequate reasons or
    bases to support its decision.
    9
    C. Section 3.156(b)
    Turning to Mrs. Hudson’s § 3.156(b) arguments, the Court is without jurisdiction to hear
    them.4 As discussed above, the § 3.156(b) contentions are being advanced via a CUE motion. A
    CUE motion requires an allegation of error with “some degree of specificity” and does not
    “encompass[ ] all potential allegations” of CUE. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir.
    2002). Although a claimant may “rephrase and provide additional argument and support for the
    same basic CUE argument presented,” it is well established that “each wholly distinct and different
    CUE theory underlying a request for revision is a separate matter and, when attacking a prior RO
    decision, each must be presented to and adjudicated by the RO in the first instance.” Jarrell v.
    Nicholson, 20 Vet.App. 326, 333 (2006) (en banc). If a CUE theory is not presented to the RO,
    “the Board lacks jurisdiction over the merits of the matter.” Id. And if the Board has no jurisdiction
    to entertain a CUE argument, then neither does this Court. See Andre, 301 F.3d at 1361-62.
    The CUE motion the veteran initially presented to the RO in September 2015 did not
    mention § 3.156(b) or any case interpreting it. Nor did the arguments filed with the Notice of
    Disagreement two months later. The first time a § 3.156(b) argument was raised was after the
    veteran retained counsel and appealed to the Board. There can be no reasonable contention that
    the § 3.156(b) argument was simply a reformulation or expansion of the same basic § 3.156(c)
    argument already presented. See, e.g., Johnston v. Nicholson, 421 F.3d 1285, 1288 (Fed. Cir. 2005)
    (a CUE motion based on subsection (c) of 38 C.F.R. § 4.16 did not encompass a later raised CUE
    argument based on subsection (b) of that regulation). Because a theory of CUE based on § 3.156(b)
    was not first presented to the RO for its adjudication, the Board was not permitted to consider it,
    and this Court has no jurisdiction to consider it in the first instance. Given this legal prohibition,
    any deficiency in the Board’s failure to explain why it was not addressing the § 3.156(b) argument
    is harmless. See Simmons v. Wilkie, 30 Vet.App. 267, 279-80 (2018).
    4 At the relevant time, this regulation provided: “New 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.” 38 C.F.R. § 3.156(b) (2011). A claim in which evidence is submitted during the
    appeal period remains pending until VA provides a responsive determination as to whether the evidence is new and
    material. Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014).
    10
    III. CONCLUSION
    Having fully considered the parties’ briefs, the record, and the relevant law, the Court
    AFFIRMS the August 1, 2018, Board decision.
    DATED: October 29, 2019
    Copies to:
    Thomas E. Andrews, III, Esq.
    VA General Counsel (027)

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