Veteranclaims’s Blog

January 15, 2022

Single Judge Application; Board failed to address the applicability of 38 C.F.R. § 3.156(c). Because the Board erred in finding that § 3.156(c) was not applicable, the Court will reverse; the Board clearly erred when it simultaneously found that the newly added 2017 submissions were relevant yet § 3.156(c) was not applicable; Relevance, for purposes of § 3.156(c), means service department records that are not duplicative and speak to a matter in dispute pertinent to the Agency’s prior denial of a claim. Kisor v. McDonough, 995 F.3d 1316, 1325 (Fed. Cir. 2021), petition for cert. filed, No. 21-465 (U.S. Sept. 24, 2021); see also Emerson v. McDonald, 28 Vet.App. 200, 209 (2016) (holding that VA must reconsider a claim when relevant service records are newly associated, no matter if those records are new and material);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-5208
HENRY L. PRIVETTE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Senior Judge: Veteran Henry L. Privette appeals a March 30, 2020, Board of Veterans’ Appeals (Board) decision that denied a compensable rating for residuals of a healed C5 fracture with traumatic arthritis (neck injury) from February 14, 1974, to January 29, 1987; a rating greater than 10% from January 30, 1987, to June 8, 1998; and a rating greater than 20% from June 9, 1998, to April 10, 2003.2 He alleges that the Board erred in denying an increased rating dating back to February 14, 1974, because the Board failed to address the applicability of 38 C.F.R. § 3.156(c). Because the Board erred in finding that § 3.156(c) was not applicable, the Court will reverse that portion of the March 2020 Board decision and remand the matters on appeal for further proceedings.
1 Judge Davis is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 03-21 (Jan. 4, 2021).
2 The Board also granted a 30% disability rating for residuals of a healed C5 fracture with traumatic arthritis from April 11, 2003. The Court may not disturb this favorable finding. See Medrano v. Nicholson, 21 Vet.App. 165, 170-71 (2007).
2
I. ANALYSIS
Mr. Privette served on active duty from December 1967 to October 1969, and from October 1969 to November 1971.3 In April 1969, he injured his neck diving into a swimming pool.4 In February 1974, he filed for service connection seeking benefits for his 1969 neck injury.5 In a September 1974 rating decision, VA granted service connection for a neck injury (fracture, C5 healed) and assigned a noncompensable rating, effective from April 1, 1974.6 Mr. Privette did not appeal this decision, and it became final. Over the years, VA granted increased ratings for the veteran’s neck injury—a 10% rating from January 30, 1987, and a 20% rating from June 9, 1988.7 Mr. Dioguardi appealed.
Then, in a May 2006 decision, the Board granted an effective date of February 14, 1974—the date of the original claim—but no earlier, for a noncompensable rating for residuals of C5 fracture.8 This decision became final.
After further proceedings not immediately relevant to this appeal, Mr. Privette submitted various service treatment records in June 2017 to VA. These records included a clinical report noting the 1969 diving incident and examination results, and evaluation and treatment records from hospitals in Vietnam, Japan, and Houston, Texas, for the veteran’s neck injury.9 He requested that VA consider the records under 38 C.F.R. § 3.156(c).10
In a January 2019 joint motion for remand, the parties agreed that the June 2017 submissions were relevant under 38 C.F.R. § 3.156(c) and that the Board erred by failing to discuss § 3.156(c).11 On remand, Mr. Privette submitted further evidence including a private opinion from
3 Record (R.) at 358-59.
4 R. at 2109.
5 R. at 2201.
6 R. at 2053.
7 R. at 1955-58, 1647-53.
8 R. at 1125.
9 R. at 181.
10 R. at 177-79; 38 C.F.R. § 3.156(c)(1) (2021) (providing that, when “VA issues a decision on a claim, if VA received 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”).
11 R. at 88-92. The Court granted the motion. R. at 93.
3
Dr. Donald Miller, who opined that Mr. Privette’s June 2017 submissions were relevant and provided additional information to determining the severity of the veteran’s neck condition.
12
In its March 2020 decision, the Board determined that § 3.156(c) did not apply “insofar as the [v]eteran is asserting entitlement to a higher rating for his cervical spine disability (i.e., an earlier effective date for the 20[%] rating).”13 Importantly, it found that § 3.156(c) was not applicable because although the June 2017 submissions were “relevant to the claim,” and some of the records had not been previously considered, they did not contain any new information demonstrating that Mr. Privette’s neck injury was worse than indicated in the original records that were before the RO at the time of the 1974 decision.14 Specifically, the Board explained:
While the service treatment records added to the file in June 2017 were relevant to the claim and some of the records dated in May 1969 had not been previously considered, the Veteran is essentially arguing that they should form the basis of granting a higher rating for his cervical spine disability, effective in February 14, 1974. The newly added service treatment records do not offer any evidence demonstrating any more severe symptoms than were found in the service treatment records that were considered at the time of the prior rating decision.15
Mr. Privette seeks reconsideration of the 1974 rating decision in light of the June 2017 submissions because, he argues, the Board erred in finding that § 3.156(c) was not applicable when it concluded that the 2017 submissions were duplicative and cumulative of the evidence before VA at the time of the original decision.16
Under § 3.156(c), VA must reconsider a claim when it “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.”17 If those newly received or associated records lead, at least in part, to an award of benefits, the effective date of that award shall correlate to “the date VA received the previously decided claim.”18 Section 3.156(c) provides an avenue for veterans seeking to correct a prior Agency decision and “serves to place a veteran in the position
12 R. at 53-62.
13 R. at 5.
14 R. at 11.
15 Id.
16 Appellant’s Brief (Br.) at 10-12.
17 38 C.F.R. § 3.156(c)(1).
18 § 3.156(c)(3).
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he [or she] would have been had the VA considered the relevant service department record before the disposition of [the] earlier claim.”
19
Here, the Board clearly erred when it simultaneously found that the newly added 2017 submissions were relevant yet § 3.156(c) was not applicable. The Board found that although some of the submissions were not duplicative of previously submitted service records, they provided no new evidence that Mr. Privette’s symptoms at the time of the 1974 decision were worse than indicated in the original service records. But for purposes of § 3.156(c)(1), the only requirement for reconsideration is the submission of “relevant” official service department records that existed and had not been associated with the claims file when VA first decided the claim.20 Relevance, for purposes of § 3.156(c), means service department records that are not duplicative and speak to a matter in dispute pertinent to the Agency’s prior denial of a claim.21 There is no requirement that the records actually establish entitlement to the benefit sought. Thus, the Board’s determination that § 3.156(c) was not applicable here, despite its clear acknowledgement that the 2017 submissions were relevant, not duplicative, and not previously considered, is clearly erroneous, and reversal of this finding is appropriate,22 with remand for VA to reconsider the claim pursuant to § 3.156(c).23 On remand, when the Board reconsiders the 1974 denial with the non-duplicative submissions from 2017, and if the Board then decides to award benefits, the effective date of that award shall correlate to “the date VA received the previously decided claim.”24
On remand, in reconsidering the claim, VA must weigh Dr. Miller’s opinion and determine if it is probative evidence concerning the question of whether the added service treatment records “offer any evidence demonstrating any more severe symptoms than were found in the service
19 Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014).
20 38 C.F.R. § 3.156(c)(1).
21 Kisor v. McDonough, 995 F.3d 1316, 1325 (Fed. Cir. 2021), petition for cert. filed, No. 21-465 (U.S. Sept. 24, 2021); see also Emerson v. McDonald, 28 Vet.App. 200, 209 (2016) (holding that VA must reconsider a claim when relevant service records are newly associated, no matter if those records are new and material).
22 See 38 U.S.C. § 7261 (a)(4) (“[I]n the case of a finding of material fact adverse to the claimant . . . [the Court shall] reverse such a finding if the finding is clearly erroneous.”); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Court may overturn the Board’s decision only if it is clearly erroneous); see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (reversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board’s decision (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996))).
23 § 3.156(c)(3); see Blubaugh, 773 F.3d at 1313.
24 § 3.156(c)(3). This is because § 3.156(c) does not require that the new service department records, alone, be sufficient to support a new effective date for an award, only that any award be based in part on the newly submitted records. Vigil v. Peake, 22 Vet.App. 63, 66 (2008).
5
treatment records that were considered at the time of the prior rating decision.”
25 The Board’s determination to the contrary in the decision on appeal was erroneous both because such a finding essentially amounts to “reconsideration” under § 3.156(c) without identifying it as such and without considering all applicable evidence of record as part of such reconsideration, and because it amounts to an unpermitted medical determination on the part of the Board.26
Lastly, Mr. Privette argues that the matter of entitlement to a higher rating for his neck injury effective from February 1974 pursuant to § 3.156(c) is inextricably intertwined with the Board’s adjudication of his increased rating claim for residuals of a healed C5 fracture prior to April 2003.27 The Court agrees that the matters are inextricably intertwined because the resolution of the § 3.156(c) may have a “significant impact” on entitlement to an increased rating for residuals of a healed C5 fracture prior to April 2003.28 Thus, this matter is remanded as well.
II. CONCLUSION
Accordingly, the part of the March 30, 2020, Board decision that determined that § 3.156(c) did not apply “insofar as the [v]eteran is asserting entitlement to a higher rating for his cervical spine disability (i.e., an earlier effective date for the 20[%] rating),”29 is REVERSED, and the matters on appeal are REMANDED for further proceedings consistent with this decision.
DATED: January 14, 2022
25 R. at 11; see Vigil, 22 Vet.App. at 66 (holding that because the award must only “in part” be based on the new service department records, the veteran is free to submit additional evidence, consistent with the regulation).
26 Colvin v. Derwinski, 1 Vet.App. 171, 172 (1999) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment in the guise of a Board opinion); see Vigil, 22 Vet.App. at 66.
27 Appellant’s Br. at 18.
28 Henderson v. West, 12 Vet. App. 11, 20 (1998) (“[W]here a decision on one issue would have a ‘significant impact’ upon another, and that impact in turn ‘could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources,’ the two claims are inextricably intertwined.” (quoting Harris v. Derwinski, 1 Vet. App. 180, 183 (1991))); see also Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (holding that, where the facts underlying two claims are “intimately connected,” the interests of judicial economy and of avoiding piecemeal litigation require the claims to be appealed together).
29 R. at 5.
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Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)

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