Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. July 19, 2017)

HELD: A claim for an increased rating for a service-connected condition does not automatically include a claim for service connection for a secondary condition related to that original condition. The effective date for the grant of service connection for the secondary condition is the date VA receives the claim for that condition.

SUMMARY: Veteran Martha Manzanares was service connected for stress fractures of both ankles, rated 0%. In February 2006, she submitted a request for an increased rating and was granted 10% for each ankle, effective the date of her request. In April 2007, she filed a timely Notice of Disagreement, as well as a claim for service connection for a back condition, secondary to her ankles.

The RO granted service connection for the back, effective April 2007, the date of her claim. She appealed to the Board, arguing that the effective date should be February 2006, pursuant to 38 C.F.R. § 3.156(b), which states that “[n]ew and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.” The Board denied the earlier effective date, stating that the effective date for service connection is the later of the date VA received the claim or the date entitlement arose. Because she filed her claim for secondary service connection for her back in April 2007, that is the correct effective date for the grant of benefits.

The CAVC affirmed the Board’s decision, finding no error in the Board’s determination that the secondary service-connection claim for her back condition was not part of the increased-rating claim for the ankles and was not filed until April 2007. The Federal Circuit agreed.

Ms. Manzanares argued that she was entitled to a February 2006 effective date based on two regulations – 38 C.F.R. § 3.156(b) (regarding new and material evidence, quoted above) and § 3.310(a), which states that “[w]hen service connection is . . . established for a secondary condition, the secondary condition shall be considered a part of the original condition.”

The Federal Circuit found that these arguments were an attempt to avoid its prior holding in Ellington v. Peake, 541 F.3d 11364, 1369 (Fed. Cir. 2008), which determined “that § 3.310(a) does not mean that primary and secondary conditions receive the same effective date.” In that case, the Court stated that it would be illogical to require the same effective date for primary and secondary conditions – since “secondary conditions may not arise until years after the original condition.” Ellington, 541 F.3d at 1369. Ellington essentially held that “secondary service connection is not part of a primary claim for service connection” – and the Court found that this holding applied to the present case, emphasizing that § 3.310(a) “speaks in terms of conditions, not claims.” (emphasis in original).

The Court added that there was nothing in the regulatory history of 38 C.F.R. § 3.310(a) that “suggests that secondary service connection is part of a claim for primary service connection or one for increased rating for a primary condition.” The Court thus held that “§ 3.310(a) does not make a claim for secondary service connection part of the primary service connection claim.” 



Garza v. McDonald, docket no. 14-2711 (Aug. 11, 2016)

HELD: Under 38 C.F.R. 21.9625(j), the effective date for the transfer of education benefits from a veteran to an eligible dependent “may not be earlier than the later of either the date the Secretary of the service department concerned approved the transfer or the date the transferor specified in his or her designation.” 

SUMMARY: The appellant in this case is the adult son of the veteran. Mr. Garza attended ITT Technical Institute and was notified April 2010 of a $15,000 tuition payment. On April 16, 2010, the veteran, who was deployed at the time, submitted an online application to transfer his education benefits to Mr. Garza.

The Department of Defense (DoD) subsequently notified the veteran that the service department had approved the transfer of five months of benefits to his son, effective April 16, 2010, the date of his online application.

In October 2010, Mr. Garza’s mother asked VA to backdate the application for benefits to August 1, 2009. She explained that they would have applied for benefits earlier, but ITT did not inform her son until April 2010 that “no financing had been done . . . dating back to August 2009.” She stated that had she known earlier, they would have applied earlier.

The RO then notified Mr. Garza that he had five months of educational benefits, starting April 16, 2010. In a subsequent letter, the RO stated that “DoD makes this determination not the VA.” Mr. Garza submitted a Notice of Disagreement for an August 2009 effective date. The RO issued a Statement of the Case, stating that benefits could not be paid prior to the April 16, 2010 eligibility date and that the “veteran should contact DoD directly for possible resolution.”

Mr. Garza appealed to the Board, arguing that his benefits should go back to August 1, 2009 because “ITT erred in handling his financing.” The Board denied the appeal, finding that “DoD approves the transfer of entitlement to educational assistance” and that “VA has no authority to revise such a DoD determination.”

The Court reviewed the relevant statutes and regulations, specifically 38 U.S.C. § 3319 and 38 C.F.R. §§ 21.9500-9770. The Court found that 38 U.S.C. § 3319(a)(1) authorizes the Secretary of the relevant service department to approve the transfer of educational assistance benefits to eligible dependents, but the statute was “silent as to whether DoD or VA assigns the eligibility dates.” Because of this “gap” in the statute, the Court looked to the relevant regulations.

The Court recognized that 38 C.F.R. § 21.9570(d)(2) “states that VA will accept the transferor’s designations” and that § 21.9570(g) allows “a transferor to modify the designations . . . ‘at any time’” by submitting written notice to both VA and DoD. However, the Court found that these subsections “must be read in light of § 21.9625(j), which provides that the beginning date of an award for educational assistance to an eligible child will be no later than the latest of either the date the DoD approves the transferor to transfer entitlement or the date the transferor specified.” In this case, the Court found that both of these dates were April 16, 2010. The Court concluded that, “as a matter of law, Mr. Garza’s beginning eligibility date cannot be earlier than April 16, 2010.”

The Court found that this interpretation was further supported by the regulatory history. The Court rejected Mr. Garza’s argument that the Board erred by not addressing 38 C.F.R. § 21.9570(g), regarding written requests for modification – because “this regulation speaks only of the transferor’s rights to modification and . . . nothing in the record shows that the veteran (the transferor) submitted any modification.”

The Court stated that while it was sympathetic to Mr. Garza’s frustrations with ITT for not informing him of his financial status earlier, it could not grant the “equitable relief” that he sought.

Advocacy note: While the Court cannot grant “equitable” relief, VA can. And VA may have granted such relief in this case had the veteran – Mr. Garza’s father – submitted a written request for modification under 38 C.F.R. § 21.9570(g).