George: 38 C.F.R. § 3.156(c) & CUE

George v. Shulkin29 Vet.App. 199 (Feb. 5, 2018)

HELD: Upon receiving new service records, VA must “reconsider” a claimant’s original claim even if service connection has already been granted with a later effective date. However, “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1),” the Court in this case did not find CUE in the Board’s determination that a proper reconsideration occurred. 

SUMMARY: In 1998, the RO denied Mr. George’s claim for service connection for PTSD because there was no confirmed PTSD diagnosis and no in-service stressor. In 2003, the veteran requested reopening. VA obtained service records, confirming the in-service stressor, and granted service connection, effective 2003. Mr. George appealed, arguing that 1998 denial should be reconsidered under 38 C.F.R. § 3.156(c). 

In 2012, on appeal to the CAVC, the parties agreed to remand for Board to consider the applicability of § 3.156(c). The Board subsequently remands for a retrospective medical opinion to determine when Mr. George’s PTSD first manifested. The C&P examiner opined that the condition first manifested in 2003, based on the 2003 C&P examiner’s report. 

In 2014, the Board denies entitlement to an earlier effective date, noting that the grant could go back to 1997, but that the first evidence of a PTSD diagnosis was not until 2003. The veteran did not appeal this decision

In 2015, Mr. George filed a motion to revise the 2014 decision on the basis of clear and unmistakable error (CUE), arguing that the Board misapplied § 3.156(c). The Board determined that there was no CUE in the 2014 decision because the medical evidence did not support a PTSD diagnosis prior to 2003. 

On appeal to the CAVC, the veteran argued that the Board erred in determining that the 2014 decision was not CUE because the Board did not “reconsider” his claim under § 3.156(c)(1), but instead only reviewed the proper effective date under § 3.156(c)(3). He argued that the finality of the original 1997 decision “‘had been undone’ by receipt of new service treatment records, and because the RO never engaged in a full readjudication, the Board erred when it found no CUE.” 

At the very beginning of its opinion, the Court emphasized that “our resolution of the claimed error here under § 3.156(c) is largely dictated by the fact that we consider that matter through the prism of CUE.” (Advocacy note: This point must be emphasized. Had the veteran directly appealed the effective date assigned in the 2003 decision, this issue would not have been subjected to the heightened CUE standard.)

The CAVC discussed § 3.156(c) and found that “upon receiving official service department records in 2007, VA had a duty to ‘reconsider’ the appellant’s 1997 claim for service connection for PTSD, despite the fact that service connection for PTSD was granted in 2007 with an effective date of 2003.” The Court noted that “what would satisfy the reconsideration required is a gray area under existing law,” and noted that “§ 3.156(c) is about more than effective dates; it’s also about development of the claim in at least some respect.” Nevertheless, the Court determined that the Board “applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision.” 

Turning to the question of whether the 2015 Board properly determined that there was no CUE in the 2014 decision, the Court stated: “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1), the Board’s determination that a proper reconsideration occurred based on the gathering of new evidence and the reweighing of old evidence, is not arbitrary and capricious under the deferential CUE standard.” 

In a footnote, the Court acknowledged the appellant’s argument that had the Board conducted a “‘full readjudication’ in 2014, his lay statements may have triggered VA’s duty to assist.” The Court stated that the duty-to-assist argument could have been raised on direct appeal, but noted that it is well established that a duty-to-assist violation cannot be CUE. 


Kisor: 38 C.F.R. § 3.156(c), EARLIER EFFECTIVE DATE

Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. Sept. 7, 2017)

HELD: When newly received service records do not “remedy the defects” of a prior claim, those records are not “‘relevant’ for purposes of § 3.156(c)” and thus will not warrant an earlier effective date.

SUMMARY: Mr. Kisor was a Vietnam combat veteran. In 1982, he filed a claim for service connection for PTSD. His Vet Center therapist submitted a letter with a diagnosis of PTSD. However, a 1983 VA (C&P) psychiatrist diagnosed a personality disorder. The RO denied the claim due to the lack of a PTSD diagnosis. Mr. Kisor did not appeal this decision and it became final.

In 2006, he filed a request to reopen his previously denied claim. He subsequently submitted a psychiatric evaluation showing a diagnosis of PTSD. He also submitted service records showing his combat history. The RO obtained an opinion from a VA examiner who confirmed the diagnosis of PTSD. The RO then made a Formal Finding of Information Required to Document the Claimed Stressor and verified his combat service. The RO granted service connection for PTSD, rated 50%, effective June 5, 2006, the date it received his request to reopen. The grant was based on the PTSD diagnosis and the Formal Finding of Information.

Mr. Kisor appealed for a higher rating and an earlier effective date. The RO granted a higher rating, but denied an earlier effective date.

Mr. Kisor appealed to the Board, arguing that there was clear and unmistakable error (CUE) in the 1983 RO decision. The Board rejected his arguments, but identified an alternative argument for an earlier effective date – via 38 C.F.R. § 3.156(c), which requires the VA to reconsider a veteran’s claim when relevant service department records are newly associated with the veteran’s claims file, whether or not they are ‘new and material’ under § 3.156(a).” (quoting Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014)). The Board considered whether the new evidence warranted reconsideration of his claim such that he would be entitled to a 1982 effective date. The Board determined that the new records were not “relevant” for purposes of § 3.156(c) because the 1983 decision denied service connection due to a lack of a PTSD diagnosis – and there was no dispute as to his combat status or in-service stressor.  

Mr. Kisor appealed to the CAVC, arguing that the Board failed to apply § 3.156(c). The Court rejected this argument, noting that the newly submitted service records did not contain a diagnosis of PTSD – and that the lack of such diagnosis was the basis for the 1983 denial. The Court found no error in the Board’s application of § 3.156(c).

Mr. Kisor appealed to the Federal Circuit, arguing that the Veterans Court misinterpreted § 3.156(c)(1). He argued for a broad interpretation of the word “relevant” based on the Federal Rules of Evidence, which would find a service record “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The Secretary argued for a narrower interpretation of “relevant” that “depends upon the particular claim and the other evidence of record.” The Secretary stated that Mr. Kisor’s newly submitted service records only relate to the existence of an in-service stressor – not to a diagnosis of PTSD – and that the “issue of an in-service stressor was never disputed in the 1983 claim.” The Secretary stated that neither the Board nor the Veterans Court “required that the evidence relate to the basis for the prior denial in all cases.” However, in Mr. Kisor’s case, the evidence relating to the in-service stressor “could not be relevant without a medical diagnosis for PTSD at the time of the previous claim.”

The Federal Circuit first determined that the term “relevant” in 38 C.F.R. § 3.156(c)(1) was ambiguous, and found that the Board’s interpretation was not “plainly erroneous or inconsistent with VA’s regulatory framework.” The Court found that the newly submitted service records were “superfluous” and determined that since they “did not remedy the defect of his 1982 claim and contained facts that were never in question,” there was no error in the Board’s conclusion that they were not “relevant” for purposes of § 3.156(c)(1).

In response to Mr. Kisor’s argument that the Veterans Court construed § 3.156(c)(1) too narrowly, the Federal Circuit held that their interpretation did not require “that relevant records must relate to the basis of a prior denial,” but rather that “on the facts and record of this case, Mr. Kisor’s later-submitted materials were not relevant to [the] determination of his claim.” The Court thus affirmed the CAVC’s decision.



Emerson v. McDonald, docket no. 14-2968 (August 10, 2016)

HELD: Even if a veteran is granted service connection on the basis of a liberalizing regulation, 38 C.F.R. § 3.156(c)(1) still requires VA to reconsider the veteran’s initial claim on the basis of its receipt of newly associated service records. 

SUMMARY: The veteran was denied service connection for PTSD in 2003 based on the lack of a verified stressor. In July 2010, VA amended 38 C.F.R. § 3.304(f) “to eliminate the requirement for corroborative evidence of a stressor where a VA mental health expert has diagnosed PTSD and the stressor is related to the veteran’s fear of hostile military or terrorist activity.” The following month, Mr. Emerson requested to reopen his claim. A VA Compensation and Pension (C&P) examiner noted his reports of combat as a helicopter door gunner. In June 2011, the Regional Office (RO) awarded service connection for PTSD, noting the change in 38 C.F.R. § 3.304(f). The RO assigned a 30% rating, effective August 2010, the date of his request to reopen.

Mr. Emerson appealed the evaluation and the effective date. In 2012, he underwent another C&P examination, and the RO subsequently continued the 30% rating and denied an earlier effective date. In July 2012, he testified at a Board hearing and his then-attorney explicitly raised the issue of the applicability of 38 C.F.R. § 3.156(c) for an earlier effective date. Later that month, Mr. Emerson’s attorney submitted additional argument to the Board regarding § 3.156(c), along with service department records listing “the date and duration of completed helicopter missions, with the letter ‘C’ written next to each ‘Mission Type.’” He also submitted an Army Form 20, listing assignments and campaigns, that included the Tet Counter Offensive.

The Board granted a 50% disability rating, but denied the earlier effective date. The Board did not address the applicability of 38 C.F.R. § 3.156(c).

The CAVC first noted that the applicability of § 3.156(c) was expressly raised, and that the Board was required to address it, citing Robinson v. Peake, 21 Vet.App. 545, 552 (2008, aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) and Brannon v. West, 12 Vet.App. 32, 35 (1998). The Court next examined the language of § 3.156(c), stating that even though the Board failed to address its applicability, the issue was raised below and the Court has the authority to consider this legal question in the first instance, citing Butts v. Brown, 5 Vet.App. 532, 539 (1993) and Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed. Cir. 2014).

The Court noted that while Mr. Emerson was seeking an earlier effective date under 38 C.F.R. § 3.156(c)(3), the issue in this appeal was whether he was entitled to reconsideration under § 3.156(c)(1), which “requires the VA to reconsider only the merits of a veteran’s claim whenever it associates a relevant service department record with his [or her] claims file.” The Court determined that the regulation “requires that official service department records received or associated with the claims file (1) be relevant to the claim, (2) have been in existence when VA first decided the claim, and (3) not have been associated with the claims file when VA first decided the claim” – and that if those requirements are met, the plain language of § 3.156(c)(1) “mandates that ‘VA will reconsider the claim.’”

The Court rejected the Secretary’s argument that § 3.156(c)(1) did not apply since Mr. Emerson had already been awarded service connection when the new service department records were submitted to VA, stating that “nothing in the plain language of (c)(1) states that, for the provision to be applicable, the claim at issue must have been denied immediately prior to the submission of official service department records.” The Court further rejected the Secretary’s argument that § 3.156(c)(1) must be read in context with § 3.156(a), noting that paragraph (c)(1) “begins and ends with two ‘nullifying clauses’” (i.e., “notwithstanding any other section of this part” and “notwithstanding paragraph (a) of this section’). The Court added that the Federal Circuit observed that “§ 3.156(c) requires . . . VA to reconsider a veteran’s claim when relevant service department records are newly associated with the veteran’s claims file, whether or not they are ‘new and material’ under § 3.156(a).’”

The Court determined that it would be a “substantial injustice” to Mr. Emerson to hold that § 3.156(c) did not apply to his case just because he was already awarded service connection based on the amendment to § 3.304(f)(3). The Court added “it would be odd if § 3.304(f)(3), whose ‘main goal’ is ‘[i]mprove[d] timeliness, consistent decision-making, and equitable resolution of PTSD claims,’ . . . were to prevent application in this case of § 3.156(c), an otherwise pertinent regulation that is premised on the notion that “a claimant should not be harmed by an administrative deficiency of the government.” (internal citations omitted). The Court thus held that “based on the plain language of § 3.156(c)(1), upon receiving official service department records in 2012, VA was required to ‘reconsider the claim’ for service connection for PTSD that was denied in February 2003, notwithstanding the fact that service connection for PTSD was granted in 2011.”

The Court also considered Mr. Emerson’s arguments regarding the Board’s rationale for denying a disability rating greater than 50%, and agreed that the Board’s statement of reasons or bases was inadequate.

The Court noted the rating criteria for the 50% and 70% ratings, and stated that assessing whether a 70% evaluation is warranted requires (1) the “initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, [(2)] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas.” Mr. Emerson pointed out several pieces of favorable evidence that relate to the 70% criteria that the Board did not discuss. Because of this – and because VA was now required to reconsider this claim under § 3.156(c)(1) – the Court agreed that the Board’s rationale for not assigning a 70% disability rating was inadequate.