38 C.F.R. § 3.156(c)(1) REQUIRES RECONSIDERATION EVEN IF VA HAS ALREADY GRANTED SERVICE CONNECTION
/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.
