Foreman: Amendment to 38 C.F.R. § 3.304(f) is not a liberalizing law for effective date purposes

Foreman v. Shulkin, 29 Vet.App. 155 (Jan. 22, 2018)

HELD: The July 2010 amendment to 38 C.F.R. § 3.304(f) that eased the burden of proof for certain veterans with claims for service connection for PTSD is not a “liberalizing” rule and, therefore, “for purposes of determining the effective date for an award of benefits based on that amendment, 38 C.F.R. § 3.114 does not apply to prevent an effective date earlier than July 2010.”

SUMMARY: In 1972, immediately following his separation from service, Vietnam veteran Frazier Foreman submitted a claim for service connection for “fungus or skin disease” and a back condition. His separation examination report notedtrouble sleeping, depression, and nervous trouble, which the examiner characterized as “nervous condition –mild.” 

In 1973, the RO granted service connection for skin, back, and residuals of a right ring finger fracture. The RO referred to Mr. Foreman’s entrance and separation examinations, but mentioned no other conditions. 

Between 2004 and 2008, Mr. Foreman received treatment at VA for post-traumatic stress disorder (PTSD).In 2008, he filed a claim for service connection for PTSD. In July 2010, while his claim was pending, VA amended 38 C.F.R. § 3.304(f) to ease the evidentiary burden on veterans with claims for service connection based on fear of hostile military or terrorist activity. During a C&P examination, Mr. Foreman reported that he was attached to a graves registration in Vietnam and “was exposed to dismembered bodies multiple times over several months.” He reported his belief that he could have been injured and that he felt “horrified.” The examiner determined that he did not have PTSD because he did not have “fear of hostile military or terrorist activity.” The RO denied Mr. Foreman’s claim because he did not have a PTSD diagnosis – even though the RO noted record evidence of prior treatment for PTSD. 

Mr. Foreman appealed and underwent another C&P examination. This examiner diagnosed PTSD, noting the veteran’s traumatic experiences. The RO granted service connection for PTSD, effective March 2011, the date of the most recent C&P examination. 

Mr. Foreman appealed to the Board, and the Board granted an effective date of July 13, 2010, the date of the “liberalizing” change to 38 C.F.R. § 3.304(f). Mr. Foreman appealed to the Veterans Court, arguing that he is entitled to a 1972 effective date because his submission at that time was an informal claim and the 2010 change to § 3.304(f) was “procedural,” so he was not limited to the July 2010 effective date.  

The Court agreed that the § 3.304(f) amendment was procedural and did not preclude an effective date earlier than July 2010. In general, the effective date for any award of benefits is the date VA receives the claim. 38 C.F.R. § 3.400. For claims granted based on change in law (or a “liberalizing” rule), the effective date cannot be earlier than the effective date of the change in law. 38 C.F.R. §§ 3.400(p), 3.114. 

The Court noted that the Federal Circuit previously held that a “liberalizing law for purposes of determining effective dates is one that brings about a substantive change in the law, creating a new and different entitlement to a benefit.” Spencer v. Brown, 17 F.3d 368, 372-73 (Fed. Cir. 1994). The Court stated that VA itself had “recognized the procedural nature of the amendment when it published the final rule,” and held: “The July 13, 2010, amendment to § 3.304(f) is not a liberalizing rule and …for purposes of determining the effective date for an award of benefits based on that amendment, 38 C.F.R. § 3.114 does not apply to prevent an effective date earlier than July 2010.” 

The Court declined to assign a September 2008 effective date (as requested by VA) –because Mr. Foreman was asking for an effective date earlier than 2008. The Court reversed the portion of the Board’s decision that denied an effective date earlier than July 2010, and remanded for the Board to determine the appropriate effective date.  

FULL DECISION

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. 

FULL DECISION

SWAN: PETITION FOR RULEMAKING RE: PTSD/MST DENIED

Service Women’s Action Network, VVA v. Sec’y of Veterans Affairs, 815 F.3d 1369 (Fed. Cir. Mar. 3, 2016)

HELD: VA's refusal to promulgate a rule that would ease a veteran's burden in establishing the occurrence of a PTSD/MST stressor event was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

SUMMARY: 38 C.F.R. § 3.304(f)(3) allows a veteran to establish with lay testimony the occurrence of a PTSD stressor event based on "fear of hostile military and terrorist activity." Under 38 C.F.R. § 3.304(f)(5), however, if the veteran's PTSD is based on military sexual trauma (MST), that veteran's lay testimony will not suffice to establish the occurrence of the traumatic event. 

Petitioners requested VA to promulgate a new subsection of § 3.304 to allow a veteran to establish the occurrence of a PTSD/MST stressor event through his/her lay testimony alone as long as a psychiatrist or psychologist confirms that the stressor is adequate to support the diagnosis. VA denied the request. 

The Federal Circuit determined that VA’s refusal to promulgate a new rule was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and was supported by “reasoned decisionmaking.” 

FULL DECISION