Veteranclaims’s Blog

January 17, 2022

Single Judge Application; § 3.156(c); New and Material Evidence, 70 Fed. Reg. 35,388, 35,389 (June 20, 2005); To explicate this regulation, at the time of proposed revisions to the rule the Secretary provided the following example:
This provision would apply . . . in cases where a veteran files a claim for
disability compensation, which VA denies because there is no
evidence of an in-service injury. Years later, if VA receives service
department records that show an in-service injury, and obtains a medical
opinion that links that injury to the claimant’s current disability, it would
grant service connection. Although the doctor’s opinion is not a
document that meets the definition of proposed § 3.156(c)(1), the service
department record showing incurrence, which provided the basis for the
medical opinion, is such a document. Therefore, the veteran in this
example would be entitled to reconsideration of the prior decision and
retroactive evaluation of disability. Any award of benefits as a result of
such reconsideration would be effective on the date entitlement arose or
the date of claim, whichever is later, or any other date made
applicable by law or regulation to previously decided claims.
New and Material Evidence, 70 Fed. Reg. 35,388, 35,389 (June 20, 2005).;

Filed under: Uncategorized — Tags: — veteranclaims @ 8:19 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-3734
JOSE E. COLON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Jose E. Colon, appeals a January 29, 2018, Board of
Veterans’ Appeals (Board) decision in which the Board denied an effective date earlier than
January 21, 2011, for the award of service connection for post-traumatic stress disorder (PTSD).
Record (R.) at 2-11. The appellant argued in his initial brief that the Board provided an inadequate
statement of reasons or bases for concluding that 38 C.F.R. § 3.156(c) does not allow for an earlier
effective date for service connection of PTSD, because it is unclear whether the Board properly
reconsidered his original October 2007 claim as required under § 3.156(c)(1), or whether the Board
improperly found reconsideration unwarranted based on an incorrect application of § 3.156(c)(3).
In the alternative, the appellant argued that even if the Court finds that the Board’s statement
applies 38 C.F.R. §3.156(c)(1), the Board’s reasons or bases remain inadequate because the Board
failed to accurately address his specific argument and the evidence relevant to that argument. The
Secretary disputed the appellant’s arguments. The Court issued a single-judge memorandum
decision on July 30, 2020, affirming the January 29, 2018 Board decision.
On August 20, 2020, the appellant filed a timely motion for reconsideration or, in the
alternative, a panel decision. The motion for reconsideration is hereby granted, and the July 30,
2
2020, memorandum decision is hereby withdrawn, and this decision is issued in its stead. Singlejudge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
I. BACKGROUND
The appellant served in the U.S. Army from August 1968 to March 1970 with service in
the Republic of Vietnam. R. at 178. He earned the Vietnam Service Medical, Vietnam Campaign
Medal, and Combat Infantryman’s Badge. Id. In October 2007, he applied for service connection
for several disorders, to include PTSD, insomnia, and depression. R. at 1662-75.
The appellant was afforded a VA examination in June 2008. R. at 1617-29. The examiner
considered the appellant’s medical and military history and noted that while serving in Vietnam he
had experienced combat. R. at 1621. The appellant described his in-service stressor and recalled
“being under attack while escorting a convoy where a fellow soldier . . . was killed.” R. at 1625.
The appellant stated that though he tried to cry for help, the convoy was “under fire so nobody
could come to their aid.” Id.
Based on her evaluation of the appellant, the VA examiner determined that the appellant
did not meet the criteria provided in the fourth edition of the Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV) for a diagnosis of PTSD. R. at 1627. The examiner reasoned that the
appellant did not meet the criteria because he did not report symptoms of avoidance, and although
he “reports having persistently experienced nightmares and having memories about the events in
Vietnam[] . . . none of the other symptoms that he refers [to] are objectively found to have been
present since Vietnam, other than [their being referred to in] the subjective history given by [the
appellant].” Id. When asked whether the appellant met the DSM-IV stressor criterion, the examiner
marked “yes” and noted that the appellant’s description of his primary stressor was related to his
PTSD. Id. According to the examiner, the appellant felt himself at risk of serious physical harm
or death when he saw a soldier killed by enemy fire during an attack on a convoy the appellant’s
unit was escorting. Id. Despite the appellant’s in-service stressor, the examiner still did not find
that the appellant met the DSM-IV criteria for a PTSD diagnosis. Id. But the VA examiner did
find that the appellant met the criteria for a diagnosis of major depressive disorder recurrent with
psychotic features. Id.
In a November 2008 rating decision, the regional office (RO) denied service connection
for PTSD. R. at 1312-18. With regard to the appellant’s PTSD claim, the RO stated that though
3
the appellant met the stressor criteria for PTSD, he did not meet the diagnostic criteria for PTSD.
R. at 1317. The appellant filed a Notice of Disagreement (NOD) with this decision in March 2009.
R. at 1277. In an October 2009 Statement of the Case (SOC), the RO continued to deny service
connection for PTSD, noting that the evidence did not show a confirmed diagnosis of PTSD that
would permit a finding of service connection. R. at 1263-65, 1247-65. In August 2010, the
appellant perfected his appeal of this claim, several months past the 60-day deadline. R. at 1240-41.
On January 21, 2011, the appellant filed a petition to reopen his claim for service
connection for PTSD. R. at 1224. In February 2011, the appellant submitted a stressor statement
in support of his claim as well as several medical release forms. R. at 1230-34. In addition, he
submitted a November 2010 VA psychiatry treatment report reflecting a diagnosis of PTSD,
delayed chronic, severe, treatment resistant. R. at 1236-38.
The appellant underwent another VA psychiatric examination in May 2011. R. at
1193-1205. The same VA examiner who had evaluated him in June 2008 conducted the
examination and found that though the appellant met the DSM-IV stressor criterion, he did not
meet the criteria for a diagnosis of PTSD. R. at 1204. And in a May 2011 rating decision, the RO
found no clinical diagnosis of PTSD and denied the claim once again. R. at 1186-92. The appellant
submitted an NOD with this decision in June 2011. R. at 1135.
In a June 2011 letter, a private physician wrote that the appellant presented with symptoms
of nightmares, flashbacks, and obsessive thoughts of events he had experienced while serving in
the military during the Vietnam War. R. at 1134. The physician explained that the appellant’s
“nightmares are all related to episodes he suffered while at Vietnam,” especially his witnessing a
fellow serviceman’s death. Id. The physician also noted that the appellant did not tolerate loud
noises, to include airplane, helicopter, siren, and firework sounds, because when he hears a loud
noise, he “enters in[to] a panic state that does not let him perform in a correct way.” Id. In addition,
the physician noted that the appellant was unable to tolerate being in crowded places, and in a
crowd “presents episodes of aggressiveness towards other people sometimes with homicidal
ideation.” Id. According to the physician, “after revision of records there is medical evidence
diagnosing the condition as PTSD in conformance with the DSM-IV.” Id. The physician also found
“evidence of a link between current symptomatology and the claimed in-service stressor so it is
more probable than not he is presenting PTSD that is service connected.” Id.
4
In an August 2012 letter, a private psychologist, Dr. L.R., reviewed the appellant’s records,
to include his service personnel records. R. at 1029, 1028-32. Dr. L.R. also reviewed the appellant’s
stressor statement and noted that he reported having been present in “threatening combat situations
where his unit was attacked while escorting a convoy in Vietnam.” Id. Upon reviewing the service
personnel records, Dr. L.R. observed that the appellant’s “unit conducted 11 major convoy escort
missions from January 1969 to March 1970″ and faced “four separate enemy attacks on convoys
escorted by D Troop with at least two of th[e]s[e] attack[s] resulting in U.S. casualties.” Id. Dr.
L.R. determined that “the records verify that [the appellant] experienced life threatening situations
while escorting convoys.” Id.
Regarding the appellant’s postmilitary history, Dr. L.R. noted that his “psychiatric
symptoms were progressive and worsening after his military discharge” and his medical diagnoses
include PTSD and major depression recurrent with psychotic features. Id. Specifically, Dr. L.R.
observed that VA progress notes dated April 2004 reflected a PTSD diagnosis. R. at 1030. After
interviewing the appellant, evaluating his mental status, and reviewing his military and
postmilitary medical treatment records, Dr. L.R. determined that the appellant did meet the
DSM-IV criteria for PTSD. R. at 1031. Dr. L.R. acknowledged the records reflecting a diagnosis
of major depressive disorder, but found that based on a review of the appellant’s combat service
and medical treatment records, “it seems more likely tha[n] not that his primary and appropriate
diagnosis is PTSD given there are valid verifiable stressors.” Id. Dr. L.R. also observed that the
appellant’s DD Form 214 showed that he was awarded the Combat Infantryman Badge, which
served as further evidence of exposure to combat-related stressor. Id.
In March 2013, the appellant, through his attorney, J.M., submitted numerous service
personnel records that included daily staff journals documenting incidents involving his unit
during his period of service in Vietnam. R. at 1033-1122. In a March 2013 letter, J.M. argued
that the author of the May 2011 VA examination report did not have full access to the appellant’s
service records. Along with his correspondence, J.M. enclosed service records that corroborated
the appellant’s claimed stressor events. R. at 1024, 1024-26. According to J.M., “[t]hroughout the
pendency of his claim, appellant has continuously asserted that he witnessed the deaths of fellow
soldiers from attacks by enemy forces, while stationed in Vietnam with ‘D’ Troop, 7th Armored
Squadron in the 1st Air Cavalry Regiment.” Id. J.M. also wrote that “[r]ecently obtained service
records confirm that during his tour, ‘D’ Troop, 7th Armored Squadron escorted at least 11 major
5
convoy missions in addition to providing perimeter security for the Vinh Long Army Airfield.”
Id. J.M. referenced an April 1969 daily staff journal entry, which reflected “‘enemy movement’
and fire on [the appellant’s] unit that resulted in four U[.]S[.] soldiers either killed or wounded
during the attack,” and a December 1969 daily staff journal entry, which reflected that the
appellant’s unit “‘received approx. 50 rounds of M-60 & M-16 fire’ from the enemy while escorting
a convoy.” R. at 1024-25. According to J.M., these records “confirm that [the appellant]
experienced significant combat trauma during his tour in Vietnam and provide further credibility
to his primary diagnosis of PTSD.” R. at 1025. J.M. argued that both the June 2008 and May
2011 VA examinations failed to address the extent of the appellant’s combat exposure. Id. J.M.
further contended that if these records had been available at the June 2008 and May 2011 VA
examinations, “more details regarding [the appellant’s] combat exposure would have been
available, thereby providing more background for a diagnosis of PTSD.” Id. J.M. went on to
reference the August 2012 private treatment report that reflected that the appellant met the
DSM-IV criteria for PTSD. Id.
In a May 2013 decision, the RO granted service connection for PTSD and evaluated the
disorder as 100% disabling, effective January 21, 2011. R. at 716-18. The RO noted that even
though the VA examination reflected a diagnosis of major depressive disorder, “the evidence as a
whole clearly show[ed] PTSD as [the appellant’s] primary diagnosis.” R. at 718. The RO
explained that the 100% evaluation was assigned from January 21, 2011, the date the appellant
sought to reopen the previous denial for PTSD. Id.
In a July 2014 letter, the appellant, through J.M., notified the RO that he disagreed with
the effective date assigned for the grant of service connection for PTSD and that he wished to elect
a decision review officer (DRO) to review this case. R. at 188-89. Citing 38 C.F.R. § 3.156(c)(3)
and Vigil v. Peake, 22 Vet.App. 63, 66-67 (2008), J.M. argued that an effective date of
October 18, 2007, was warranted for service connection for PTSD, “as service records not
previously associated with [the appellant’s] file at the time of his initial claim[] were added after a
final denial and in conjunction with the recent grant of service connection.” Id. According to J.M.,
the November 2008 VA examination was based on the June 2008 VA examination report in which
the examiner diagnosed the appellant with major depressive disorder, and in doing so, “questioned
the occurrence of [the appellant’s] claimed combat exposure, noting that ‘he is selective in what he
can or allegedly can’t recall'” and unable to recall dates. Id. J.M. also noted that like the June 2008
6
examination report, the May 2011 examination report reflected a diagnosis of major depression,
and the May 2011 examiner based this diagnosis on the appellant’s work-related car accident. R.
at 189. J.M. noted that the appellant’s service records were associated with his claims folder after
a final denial, and in combination with his current appeal, these service records provided additional
evidence regarding the extent of the appellant’s combat exposure–”an issue that had been tacitly
questioned by VA examiners in the past.” Id.
In a November 2014 SOC, the RO denied the claim for an effective date earlier than
January 21, 2011, for service connection for PTSD. R. at 53-83. The appellant perfected his
appeal of his claim in December 2014. R. at 51. In the February 2016 letter, the appellant’s
representative argued that the service department records submitted in March 2013 provided
details about the appellant’s combat exposure in Vietnam and that these records “led VA to grant
service connection for PTSD.” R. at 22. The appellant’s representative also argued that 38 C.F.R.
§ 3.156(c)(3) should apply and lead to the grant of an effective date in October 2007, the date of
the appellant’s first application for service connection for PTSD. R. at 22, 24.
In the January 29, 2018 decision, the Board denied the claim for an effective date earlier
than January 21, 2011, for the award of service connection for PTSD. R. at 2-11. This appeal
followed.
II. ANALYSIS
As a general matter, when the Board renders a decision that is not appealed to the Court
within the statutory period, that decision becomes final. 38 U.S.C. §§ 7252, 7266(a)(1) (“In order
to obtain review by the [Court] of a final decision of the [Board], a person adversely affected by
such decision shall file [a Notice of Appeal] with the Court within 120 days.”). A claimant may
otherwise reopen such a final decision by submitting new and material evidence. 38 C.F.R.
§ 3.156(a) (2021). The 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. 38 U.S.C.
§ 5110(a); 38 C.F.R. § 3.400(b)(ii)(B)(2)(i), (r) (2021). However, § 3.156(c) provides an exception
to these rules. Subsection (c)(1) states:
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
7
been associated with the claims file when VA first decided the claim, VA
will reconsider the claim, notwithstanding paragraph (a) of this section.
§ 3.156(c)(1). Subsection (c)(3) in turn states that, should an award be granted because of records
obtained via subsection (c)(1), the award “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)(iii)(3).
The purpose of subsection (c) is “to place a veteran in the position he [or she] would have
been [in] had . . . VA considered the relevant service department record before the disposition of
[the] earlier claim.” 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 Pacheco v. Gibson, 27 Vet.App. 21, 32-33 (2014) (en banc) (Pietsch,
J., concurring) (noting that subsection (c) “is an exception to finality”).
If VA thereafter makes an award based in whole or in part on these newly associated service
department records, the assigned effective date will be “the date entitlement arose or the date VA
received the previously decided claim, whichever is later.” 38 C.F.R. § 3.156(c)(3); see Mayhue
v. Shinseki, 24 Vet.App. 273, 279 (2011) (“[A] claimant whose claim is reconsidered based on
newly discovered service department records may be entitled to an effective date as early as the
date of the original claim.”). “In this sense,” the Court has said of the operation of § 3.156(c), “the
original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the
earliest date for which benefits maybe granted.” Vigil v. Peake, 22 Vet.App. 63, 66-67 (2008).
To explicate this regulation, at the time of proposed revisions to the rule the Secretary
provided the following example:
This provision would apply . . . in cases where a veteran files a claim for
disability compensation, which VA denies because there is no
evidence of an in-service injury. Years later, if VA receives service
department records that show an in-service injury, and obtains a medical
opinion that links that injury to the claimant’s current disability, it would
grant service connection. Although the doctor’s opinion is not a
document that meets the definition of proposed § 3.156(c)(1), the service
department record showing incurrence, which provided the basis for the
medical opinion, is such a document. Therefore, the veteran in this
example would be entitled to reconsideration of the prior decision and
retroactive evaluation of disability. Any award of benefits as a result of
such reconsideration would be effective on the date entitlement arose or
8
the date of claim, whichever is later, or any other date made
applicable by law or regulation to previously decided claims.
New and Material Evidence, 70 Fed. Reg. 35,388, 35,389 (June 20, 2005).

The appellant contends that the Board provided an inadequate statement of reasons or bases
for concluding that 38 C.F.R. § 3.156(c) does not allow an earlier effective date for service
connection of PTSD, “because it is unclear whether [the Board] properly ‘reconsidered’
[a]ppellant’s original October 2007 claim as required under § 3.156(c), or improperly found
reconsideration unwarranted based on an incorrect application of § 3.156(c)(3).” Appellant’s Brief
(Br.) at 11. According to the appellant, the Board’s statement of reasons or bases “makes it wholly
unclear whether it actually ‘reconsidered’ the initial October 2007 claim under (c)(1) or improperly
found reconsideration unwarranted through an incorrect application of (c)(3), frustrating judicial
review.” Id. at 13. The appellant recognizes that the Board considered his argument “‘concerning
the applicability of 38 C.F.R. § 3.156(c),'” but he argues that “its statement of reasons or bases
jumps directly into an incorrect analysis under § 3.156(c)(3), frustrating effective judicial review.”
Id. at 14. The appellant maintains that the Board’s analysis of the basis for the grant in the May
2013 rating decision reflects a misunderstanding of § 3.156(c)(1) and (c)(3). Id. According to the
appellant, reconsideration of the October 2007 claim requires “an analysis of whether the newly
received service records provide a basis in full or in part for an award of service connection,” and
instead of independently analyzing the matter as required, the Board “simply relied on the basis of
the grant in the May 2013 rating decision–that the reopened claim was granted based on the new
medical opinion and not the new service records.” Id. at 17.
In response to these contentions, the Secretary argues that “the Board appropriately applied
38 C.F.R. § 3.156(c)(1) when it reconsidered the basis of the November 2008 RO denial of service
connection for PTSD.” Secretary’s Br. at 6. Reviewing the January 29, 2018, Board decision in
detail, the Secretary notes the ways in which the Board considered and applied 38 C.F.R.
§ 3.156(c)(1). Id. Specifically, the Secretary asserts that “the Board noted that both the RO and
the June 2008 VA examiner recognized that [a]ppellant had experienced an in-service stressor,”
and in discussing the contents of the newly submitted service department records, the Board notes
that the records “corroborated a fact that VA had already accepted as true – that appellant had
experienced an in-service stressor.” Id. According to the Secretary, the appellant’s assertion that
the Board failed to reconsider the November 2008 denial of service connection, as required by
9
38 C.F.R. § 3.156(c)(1), is false and reflects a profound misunderstanding of the Board decision.
Id. at 7. The Secretary maintains that while the appellant “professes to be perplexed by the Board’s
analysis, he has utterly failed to identify any flaw therein.” Id. The Secretary also describes the
appellant’s contention—that the Board erred by conducting an analysis under §3.156(c)(3)–as
“curious,” because the Board did not reference this provision at all. Id.
In the January 2018 decision, the Board considered the appellant’s representative’s
argument “concerning the applicability of 38 C.F.R. § 3.156(c)(1),” but because of the new medical
opinion reflecting a PTSD diagnosis found that the claim had been reopened and granted in the
May 2013 rating decision. R. at 7. In making this determination, the Board reviewed the evidence
of record and found that the appellant’s in-service stressors had not changed and had never been
the issue barring the grant of his claim–”rather, it was the lack of evidence of a current diagnosis.”
Id. The Board ultimately found that “the award of service connection was not based in whole or in
part on the additional service department records and 38 C.F.R. § 3.156(c) does not provide a basis
for an earlier effective date in this matter.” R. at 7-8.
In his August 20, 2020, motion for reconsideration or, in the alternative, a panel decision,
the appellant accepted the Court’s finding “that reconsideration was triggered under § 3.156(c)(1),”
but he argued that “the Court and the Board misunderstood what reconsideration entails under
§ 3.156(c)(3) and failed to explain why an earlier effective date was not warranted.” Motion for
Reconsideration (Motion) at 2. Referencing George v. Shulkin, 29 Vet.App. 199, 204-95 (2018),
vacated on other grounds sub nom. George v. Wilkie, 782 F. App’x 997 (Fed. Cir. 2019), the
appellant observes that “the Court recognized in George, reconsideration may require developing
evidence after receipt of new service records, such as obtaining a retrospective opinion, or
reviewing the records in conjunction with the entire evidence of record.” Motion at 3. In other
words, the appellant maintains that 38 C.F.R. § 3.156(c) requires that the Board “reconsider[] the
original November 2008 denial, including addressing the various steps taken after receipt of the
relevant service records” and further consider “the other evidence bearing on the claim, to reach a
decision as to ‘whether the award was attributable in whole or in part to the newly obtained service
records.'” Id. at 3-4. According to the appellant, the cases interpreting the regulation required the
Board to reconsider the merits of the original claim based on the entire record. Id. at 6. The
appellant also contends that the 2012 positive medical opinion relied partly on the newly associated
service records documenting his stressor incidents to provide a PTSD diagnosis and nexus, and in
10
awarding service connection, the RO implicitly relied on the opinion. Id. at 4-5. But “the Board
and the Court failed to explain why this did not result in an earlier effective date.” Id.
The Court agrees with the appellant’s contentions that it is unclear whether the Board, in
the January 2018 decision, properly reconsidered the October 2007 claim as required under
§ 3.156(c)(1), or found reconsideration unwarranted based on an incorrect application of
§ 3.156(c)(3). Appellant’s Br. at 11. Though the Secretary maintains that the Board appropriately
applied § 3.156(c)(1) when it reconsidered the basis of the November 2008 RO’s denial of service
connection for PTSD, and further contends that the Board did not analyze the matter under
§ 3.156(c)(3), see Secretary’s Br. at 6-7, review of the January 2018 decision itself reflects that the
Board relied on the language under § 3.156(c)(3) in finding that “the award of service connection
was not based in whole or in part on the additional service department records and 38 C.F.R.
§ 3.156(c) does not provide a basis for an earlier effective date in this matter.” R. at 7-8.
In this regard, the Board found the newly associated service records not relevant because
they did not serve as the basis for the grant of service connection; yet this finding conflates
§ 3.156(c)(1) and § 3.156(c)(3). “Subsection (c)(1) is a separate and distinct provision from
subsection (3)” and “requires . . . VA to reconsider only the merits of a veteran’s claim
whenever it associates a relevant service department record with [the] claims file.” Blubaugh, 773
F.3d at 1314; see Emerson, 28 Vet.App. at 207. Thus, the relevance of the service department
records dictates whether reconsideration of the prior claim is warranted. Only if “VA grants
benefits resulting from reconsideration of the merits under § 3.156(c)(1), must it consider an earlier
effective date under subsection(3),” Blubaugh, 773 F.3d at 1314; see Emerson, 28 Vet.App.
at 207. That inquiry involves determining whether the subsequent award was based all or in part
on the newly associated records. 38 C.F.R. § 3.156(c)(3).
Here, it’s unclear whether the Board’s consideration of the relevance of the newly
associated service records employs the wrong temporal focus. In finding that “the award of service
connection was not based in whole or in part on the additional service department records,” the
Board apparently focused more on the reason for the eventual grant of service connection; the
correct inquiry, however, is whether the records are relevant to the basis of the prior decision. See
Kisor v. Wilkie, 969 F.3d 1333, 1340 (Fed. Cir. 2020) (“[T]he context of § 3.156(c) makes clear
that, in order to be ‘relevant’ for purposes of reconsideration, additional records must speak to the
basis for the VA’s prior decision.”). In other words, § 3.156(c) “ensures that a veteran is not denied
11
benefits due to an administrative error” of ailing to associate extant service records with the claims
file. Blubaugh, 773 F.3d at 1313.
Though VA reopened the previously denied claim based on new and material evidence and
subsequently granted the claim at the same time the additional service department records were
submitted, such action does not relieve VA of its duty to reconsider the prior claim if those
additional service records were relevant to the prior claim. See Emerson, 28 Vet.App. at 208
(explaining that § 3.156(c) imposes a single limitation on the circumstances warranting
reconsideration–that is, it is warranted at any time after VA issues a decision on a claim). This is
true even if, as the Board found, the eventual grant of service connection was based on the more
recent medical opinions.
Though the appellant’s ultimate goal is to obtain an earlier effective date pursuant to
§ 3.156(c)(3), the question the Board first must answer is whether he is entitled to reconsideration
under § 3.156(c)(1). See id. at 207. The Court concludes that the Board’s analysis in this regard is
unclear, prevents the appellant from understanding the precise basis for its adverse decision, and
frustrates judicial review. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert,
1 Vet.App. at 56-57. Accordingly, the claim must be remanded for the Board to provide a more
adequate statement of reasons and basis in determining whether the appellant is entitled to an
earlier effective date for the grant of service connection for PTSD, and specifically, to clarify and
expand upon its analysis of 38 C.F.R. § 3.156(c) when rendering this determination. See Tucker v.
West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the
Board has . . . failed to provide an adequate statement of reasons or bases for its determinations”).
On remand, Mr. Tucker is free to submit additional arguments and evidence, including the
arguments raised in his brief to this Court, and the Board must consider any such evidence or
argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that “[a] remand
is meant to entail a critical examination of the justification for the [Board’s] decision,” Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in
accordance with 38 U.S.C. § 7112.
12
III. CONCLUSION
Upon consideration of the foregoing, the January 29, 2018, Board decision is SET ASIDE,
and the matter is REMANDED for readjudication consistent with this decision.
DATED: September 14, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.