Veteranclaims’s Blog

January 5, 2022

Single Judge Application; 3.156; Blubaugh v. McDonald; George v. Wilkie; In Blubaugh v. McDonald, the United States Court of Appeals for the Federal Circuit (Federal Circuit) underscored that § 3.156(c) “serves 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.” 773 F.3d 1310, 1313 (Fed. Cir. 2014). The Federal Circuit noted that paragraph (c)(1) “is a separate and distinct provision from paragraphs (3) and (c)(4)” and that “[t]he language and overall structure of § 3.156(c) strongly suggest that § 3.156(c)(1) requires . . . VA to reconsider only the merits of a veteran’s claim” whenever newly acquired relevant service records are associated with the claims file, and that “[o]nly if . . . VA grants benefits resulting from reconsideration of the merits under § 3.156(c)(1) must it consider an earlier effective date under subsections (c)(3) and (c)(4).” Id. at 1314. “To be relevant, a record must be relevant to the issue that was dispositive . . . and . . . bear on the outcome of the case. . . . [T]he record must speak to a matter in issue, in other words, a matter in dispute.” Kisor v. McDonough, 995 F.3d 1316, 1322 (Fed. Cir. 2021). This Court further emphasized the distinction between paragraph (c)(1) and paragraphs (c)(3) and (c)(4) in Emerson v. McDonald, stating that the operative clause in § 3.156(c)(1) “mandates that ‘VA will reconsider the claim'” at any time after it issues a decision on a claim if it receives relevant service department records not previously associated with the claims file. 28 Vet.App. 200, 208 (2016) (quoting 38 C.F.R. § 3.156(c)(1)). Additionally, in George v. Shulkin, the Court explained that “reconsideration” under paragraph (c)(1) requires VA to reassess its original decision “in light of the new service records” and noted that this may also include the development of additional evidence. 29 Vet.App. 199, 205 (2018), vacated on other grounds sub nom. George v. Wilkie, 782 F. App’x 997 (Fed. Cir. 2019).;

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-8563
LEWIS BROWN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Lewis Brown, through counsel appeals an August 13,
2019, Board of Veterans’ Appeals (Board) decision that denied an effective date prior to
September 13, 2011, for the award of service connection for left and right lower extremity
radiculopathy and entitlement to a total disability rating based on individual unemployability
(TDIU), and denied a disability rating in excess of 40% for left lower extremity radiculopathy.
Record (R.) at 5-12. The appellant does not raise any argument concerning the Board’s denial of a
higher disability rating for left lower extremity radiculopathy. Therefore, the Court finds that he
has abandoned his appeal of this issue and will dismiss the appeal as to the abandoned issue.
See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). Additionally, the Board’s
grant of an effective date of September 13, 2011, for the award of service connection for left and
right lower extremity radiculopathy and entitlement to TDIU, and the grant of a 40% disability
rating for left lower extremity radiculopathy are favorable findings that the Court may not disturb.
See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub nom.
Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App.
376, 377 (1992) (per curiam order) (“This Court’s jurisdiction is confined to the review of final
Board . . . decisions which are adverse to a claimant.”).
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This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate that
part of the Board’s decision denying an effective date prior to September 13, 2011, for the award
of service connection for left and right lower extremity radiculopathy and entitlement to TDIU and
remand the matters for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1953 to May 1955 and
from September 1961 to August 1962. R. at 830; see R. at 7, 2790, 3322. In May 1977, he filed a
claim for disability compensation for a back condition. R. at 3389-92. A VA regional office (RO)
denied the claim in October 1977. R. at 3322. The RO acknowledged the appellant’s assertions
that he had injured his back during service and that he became totally disabled in June 1977 but
noted that his service medical records were unavailable and that there was otherwise no
corroborating evidence of a back injury during service. Id. The appellant did not appeal that
decision.
In September 2011, he filed a supplemental claim for benefits for his back. R. at 3102. The
RO subsequently received his service treatment records, reflecting that he was treated for back
pain in February 1962, R. at 3024, but continued the prior denial, R. at 2790-95. The appellant
filed a Notice of Disagreement (NOD), R. at 2753-54, and at a hearing before a decision review
officer, requested that VA apply 38 C.F.R. § 3.156(c), grant service connection for a back
condition and TDIU, and assign a 1977 effective date, R. at 2654. He subsequently submitted a
medical nexus opinion and asserted entitlement to disability compensation for his back and left
and right leg radiculopathy, and entitlement to TDIU, all from 1977. R. at 1185-88; see R. at
2656-61.
In a February 2016 rating decision, the RO awarded entitlement to disability compensation
for degenerative disc disease of the lumbar spine with bilateral radiculopathy and assigned a 40%
disability rating effective May 2, 1977. R. at 910-18. The RO noted that, pursuant to 38 C.F.R.
§ 3.156, “[t]he effective date is the date of receipt of [the] original disability claim,” and regarding
the assigned rating, the RO explained that the lumbar spine and radiculopathy disabilities were
being rated together under a single 40% disability rating because “it would be more advantageous”
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to the appellant to do so rather than to rate the disabilities separately. R. at 914. The RO
additionally noted that “[t]his is a grant of [the] benefit sought[,] and the appeal is considered
satisfied in full.” R. at 915.
Shortly thereafter, the RO issued a Statement of the Case relating to the denial of a
compensable rating for a bilateral foot disability and TDIU. R. at 849-82. The appellant appealed
both matters to the Board. R. at 838. The Board, in July 2017, determined that the matter of
entitlement to TDIU was not part of the claim before it for an increased disability rating for
bilateral inferior calcaneal spurs, but noted that the issue was raised in records dated in December
2014 and November 2015. R. at 754-55; see R. at 753-65. Accordingly, the Board referred the
issue to the RO. R. at 755.
In November 2017, the RO denied entitlement to TDIU in part because the appellant had
not submitted a completed VA Form 21-8940, Veteran’s Application for Increased Compensation
Based on Unemployability. R. at 380-83. Two months later, the appellant submitted an NOD and
a VA Form 21-8940, asserting that his back condition and all other service-connected disabilities
precluded employability. R. at 375-77, 378-79.
In an August 2018 rating decision, the RO separated the ratings for the appellant’s back
disability and lower extremity radiculopathy; the RO awarded a 40% disability rating for
degenerative joint disease of the lumbar spine and 10% disability ratings for left and right lower
extremity radiculopathy, all effective from June 7, 2018. R. at 188-94. The RO also awarded
entitlement to TDIU, effective September 13, 2011. R. at 189. The appellant selected the
higher-level review process and asserted that the effective dates should be as early as 1977. R. at
81, 83-89. In February 2019, the RO awarded a November 25, 2013, effective date for the grant of
service connection for left lower extremity radiculopathy but denied earlier effective dates for right
lower extremity radiculopathy and TDIU. R. at 48-57. The appellant appealed to the Board. R. at
20.
On August 13, 2019, the Board granted an effective date of September 13, 2011, but no
earlier, for the award of service connection for left and right lower extremity radiculopathy and
entitlement to TDIU. R. at 5-12. This appeal followed.
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II. ANALYSIS
A. The Parties’ Arguments
The appellant argues that the Board erred when it determined that September 13, 2011, is
the date of the claim that formed the basis for his award of benefits for left and right lower
extremity radiculopathy and TDIU. Appellant’s Brief (Br.) at 5-9. He contends that the RO, in
2016, reconsidered his May 1977 claim for a back condition pursuant to § 3.156(c) and, therefore,
May 1977 is also the relevant date for purposes of establishing the correct effective date for his
radiculopathy ratings and TDIU because the Board favorably found that these matters arose from
the same claim for a low back disability. Id.; see R. at 8, 11.
The Secretary counters that the matters of entitlement to TDIU and disability compensation
for bilateral lower extremity radiculopathy were not claimed in 1977 or adjudicated by the RO in
the October 1977 rating decision. Secretary’s Br. at 5-10. He thus contends that reconsideration
pursuant to § 3.156(c) and an earlier effective date are not warranted. Id. The Secretary also asserts
that TDIU and benefits for radiculopathy were not awarded “‘based all or in part on the [service
department] records'” added to the file after the 1977 decision. Id. at 8 (quoting 38 C.F.R.
§ 3.156(c)(3)); see id. at 10.
In response, the appellant does not dispute that he did not file a separate claim for
radiculopathy or explicitly request TDIU in 1977. Reply Br. at 1-6. Instead, he asserts that,
pursuant to Note 1 of the General Rating Formula for Diseases and Injuries of the Spine, VA is
required to rate any associated neurological abnormalities separately, and that established caselaw
required VA to adjudicate TDIU because it was raised by the record. Id. at 1-3, 5-6; see 38 C.F.R.
§ 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2020).
B. Law
Ordinarily, if a claim is finally denied and later reopened and granted based on the
submission of new and material evidence, the effective date of benefits will be the date that the
claimant filed the application to reopen. 38 U.S.C. § 5110(a)(1) (effective to Aug. 22, 2017);
38 C.F.R. § 3.400(b)(2)(i), (r) (2020). However, § 3.156(c) provides an exception to this rule.
Paragraph (c)(1) provides: “[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.” 38 C.F.R. § 3.156(c)(1) (2020). Paragraph (c)(3) further provides that “[a]n award made
5
based all or in part on the records identified by paragraph (c)(1) . . . is effective on the date
entitlement arose or the date VA received the previously decided claim, whichever is later.”
38 C.F.R. § 3.156(c)(3). Finally, paragraph (c)(4) permits a retroactive evaluation of disability in
certain circumstances. 38 C.F.R. § 3.156(c)(4).
In Blubaugh v. McDonald, the United States Court of Appeals for the Federal Circuit (Federal Circuit) underscored that § 3.156(c) “serves 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.” 773 F.3d 1310, 1313 (Fed. Cir. 2014). The Federal Circuit noted that paragraph (c)(1) “is a separate and distinct provision from paragraphs(3) and (c)(4)” and
that “[t]he language and overall structure of § 3.156(c) strongly suggest that § 3.156(c)(1) requires . . . VA to reconsider only the merits of a veteran’s claim” whenever newly acquired relevant service records are associated with the claims file, and that “[o]nly if . . . VA grants benefits resulting from reconsideration of the merits under § 3.156(c)(1) must it consider an earlier effective date under subsections (c)(3) and (c)(4).” Id. at 1314. “To be relevant, a record must be relevant to the issue that was dispositive . . . and . . . bear on the outcome of the case. . . . [T]he record must speak to a matter in issue, in other words, a matter in dispute.” Kisor v. McDonough, 995 F.3d 1316, 1322 (Fed. Cir. 2021).
This Court further emphasized the distinction between paragraph (c)(1) and paragraphs (c)(3) and (c)(4) in Emerson v. McDonald, stating that the operative clause in § 3.156(c)(1) “mandates that ‘VA will reconsider the claim'” at any time after it issues a decision on a claim if it receives relevant service department records not previously associated with the claims file. 28 Vet.App. 200, 208 (2016) (quoting 38 C.F.R. § 3.156(c)(1)). Additionally, in George v. Shulkin,
the Court explained that “reconsideration” under paragraph (c)(1) requires VA to reassess its original decision “in light of the new service records” and noted that this may also include the development of additional evidence. 29 Vet.App. 199, 205 (2018), vacated on other grounds sub nom. George v. Wilkie, 782 F. App’x 997 (Fed. Cir. 2019).

A Board determination as to the proper effective date is a finding of fact that will not be
overturned unless the Court finds the determination to be clearly erroneous. Evans v. West,
12 Vet.App. 396, 401 (1999). As with any material issue of fact or law, the Board must provide a
statement of the reasons or bases for its determination “adequate to enable a claimant to understand
the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday
6
v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57 (1990).
C. The Board’s Decision
The Board granted an effective date of September 13, 2011, but no earlier, for the award
of “service connection” for left and right lower extremity radiculopathy and entitlement to TDIU.
R. at 5-12. Regarding radiculopathy, the Board stated that the appellant had filed an informal claim
for compensation for a back disability on September 13, 2011, and that the RO had granted separate
ratings for the radiculopathy disabilities “as part of [his] claim for service connection for [the]
lumbar spine disability.” R. at 7-8. Regarding TDIU, the Board similarly stated that “the claim for
TDIU was inferred due to the September 13, 2011, claim for service connection for [the] low back
disability,” and that the RO had granted and assigned an effective date as part of that back claim.
R. at 11. The Board further addressed the appellant’s contentions that he was entitled to May 1977
effective dates for bilateral radiculopathy and TDIU. R. at 8, 11. In this regard, the Board
acknowledged that treatment notes and a 1980 physician’s letter reflected neurological
symptomatology and that the evidence showed that the appellant’s back condition impaired his
ability to work since May 1977. Id. The Board nonetheless concluded that there was no basis to
award an effective date earlier than September 13, 2011, because that was the date VA received
the appellant’s claim for a back disability. R. at 8, 11.
D. Discussion
As noted above, the Board favorably determined that the RO awarded benefits for bilateral
radiculopathy and TDIU as part of the appellant’s September 13, 2011, claim for a low back
disability. See Medrano, 21 Vet.App. at 170. The Board thus denied an effective date earlier than
the date of the claim. However, in doing so, the Board did not address § 3.156(c) or the import of
the RO’s February 2016 rating decision, which reconsidered the appellant’s May 1977 claim for a
low back condition and awarded service connection based on the date of receipt of the original
claim pursuant to § 3.156(c)(3).1 This was error. See Robinson v. Peake, 21 Vet.App. 545, 553
1 The Court notes that neither the Board nor the parties here on appeal acknowledge that the RO in 2016
awarded disability compensation for degenerative disc disease of the lumbar spine with bilateral radiculopathy and
assigned a single 40% disability rating. R. at 914-15. The Court will not at this time address what bearing, if any, that
award has on the appellant’s current contentions that the Board erred by failing to address § 3.156(c) or whether an
earlier effective date for the award of service connection for left and right lower extremity radiculopathy is available
under § 3.156(c)(3). These are matters best decided by the Board in the first instance. See Hensley v. West, 212 F.3d
1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”); see also
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(2008) (requiring the Board to consider all theories of entitlement to VA benefits that are either
raised by the claimant or reasonably raised by the record), aff’d sub nom. Robinson v. Shinseki,
557 F.3d 1355 (Fed. Cir. 2009).
Although the parties make competing arguments as to whether § 3.156(c) applies to VA’s
adjudication of entitlement to benefits for bilateral radiculopathy and TDIU, the Court’s review is
frustrated by the Board’s failure to make any factual findings concerning the scope of the
appellant’s 1977 claim and whether it included, as the Bound found concerning his 2011 informal
claim, the issues of entitlement to separate ratings for radiculopathy and TDIU. See Chavis
v. McDonough, __ Vet.App. , , No. 18-2928, 2021 WL 1432578, at *12 (Apr. 16, 2021)
(“VA’s consideration of . . . neurologic manifestations as part of the claim seeking higher
compensation for the lumbar spine disability is . . . consistent with VA’s duty to sympathetically
read pro se pleadings.”); Bailey v. Wilkie, 33 Vet.App. 188, 203 (2021) (“VA is required to develop
and adjudicate related claims for secondary service connection for disabilities that are reasonably
raised during the adjudication of a formally initiated claim for the proper evaluation level for the
primary service-connected disability.”); Rice v. Shinseki, 22 Vet.App. 447, 453-54 (2009) (per
curiam) (“When entitlement to TDIU is raised during the adjudicatory process of the underlying
disability or during the administrative appeal of the initial rating assigned for that disability, it is
part of the claim for benefits for the underlying disability.”); see also 38 U.S.C. §§ 7104(d)(1),
7261(c); Hensley, 212 F.3d at 1263; Allday, 7 Vet.App. at 527. Remand is therefore required. See
Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board . . . failed to provide an adequate
statement of reasons or bases for its determinations, . . . a remand is the appropriate remedy.”).
Given this disposition, the Court will not now address any remaining arguments and issues
raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court
will not ordinarily consider additional allegations of error that have been rendered moot by the
Court’s opinion or that would require the Court to issue an advisory opinion”); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order). The Court reminds the Board that “[a] remand is
meant to entail a critical examination of the justification for the decision,” Fletcher v. Derwinski,
38 U.S.C. § 7261(c) (“In no event shall findings of fact made by the Secretary or the Board . . . be subject to trial de
novo by the Court.”).
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1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in accordance with
38 U.S.C. § 7112.
III. CONCLUSION
The appeal of that part of the Board’s August 13, 2019, decision denying entitlement to a
disability rating in excess of 40% for left lower extremity radiculopathy is DISMISSED. After
consideration of the parties’ pleadings and a review of the record, the part of the Board’s decision
denying entitlement to an effective date prior to September 13, 2011, for the award of service
connection for left and right lower extremity radiculopathy and entitlement to TDIU is
VACATED, and the matters are REMANDED for further proceedings consistent with this
decision.
DATED: May 28, 2021
Copies to:
Kenneth H. Dojaquez, Esq.
VA General Counsel (027)

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