Veteranclaims’s Blog

October 25, 2012

Single Judge Application, Cline v. Shinseki, ___ Vet. App. ___ , No. 10–3543, 2012 WL 3524832 (August 16, 2012); Retroactivity of Amendments to § 3.156(c)

Excerpt from decision below:
“The Court concludes that its recent holding in Cline v. Shinseki, ___ Vet.
App. ___ , No. 10–3543, 2012 WL 3524832 (August 16, 2012), controls here.1
In Cline, the Court found that the Board erred in retroactively applying amended § 3.156(c)(2)’s exception to deny the appellant entitlement to an earlier effective date for his service-connected PTSD. Id. at *9. Therefore, given that the appellant submitted his claim to reopen prior to October 2006, when amendments to § 3.156(c), including the addition of subsection (c)(2), took effect, the Court is compelled in this case to conclude that the Board erred in retroactively applying that regulation’s exception.
The Secretary’s argument that the Board decision should be affirmed because the Board made a finding of fact that the appellant was not diagnosed with PTSD prior to 1999 is mistaken. As noted in Cline, the version of § 3.156(c) in effect prior to October 2006 authorizes an effective date as early

1 The Court notes that, although Cline was issued subsequent to briefing in this matter, neither party advised the Court of this case. See U.S. Vet.App. R. 30(b) (“When pertinent and significant authority comes to the attention of a party after the party’s brief has been filed or after oral argument but before the decision, a party shall promptly file notice with the Clerk, and serve all other parties.”)
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as the date of the original claim, up to the date of the claim to reopen,
and application of the regulation requires a retroactive evaluation of the disability. Cline, 012 WL 3524832, at *5 (citing Vigil v. Peake, 22 Vet.App. 63, 65 (2008)).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2843
MICHAEL G. ADAMS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

LANCE, Judge: The appellant, Michael G. Adams, through counsel, appeals a
May 24,
2011, Board of Veterans’ Appeals (Board) decision that denied his claim
for an effective date prior
to February 18, 1999, for the grant of service connection for post-
traumatic stress disorder (PTSD).
Record (R.) at 3-21. Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App.
23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction
over the case pursuant to
38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court
will vacate the May24, 2011,
decision and remand the matter for further proceedings consistent with
this decision.
I. FACTS
The appellant served in the U.S. Armyfrom November 1967 to March 1971. See
R. at 1086-
87. In the decision on appeal, the Board denied an effective date earlier
than February 18, 1999, for
the award of service connection for PTSD. R. at 19. The Board noted that
the regional office (RO)
received the appellant’s original claim for entitlement to service
connection for delayed stress
syndrome on January 6, 1983, and denied entitlement to service connection
for bipolar disorder,
schizotypal personality disorder, and PTSD in August 1983. R. at 4-5. The
Board then noted that
the appellant filed a claim to reopen his claim for service connection for
PTSD in February 1999,

which was eventually granted in May 2008. The appellant was assigned an
effective date of
February 18, 1999, the date VA received his request to reopen the claim. R.
at 4. The Board
determined that, since VA received unit histories of the 669th
Transportation Company and 523rd
Transportation Company subsequent to the 1983 rating decision, the
application of 38 C.F.R. §
3.156(c) (2012), as amended in 2006, must be considered. Id. However, the
Board found that the
veteran failed to provide sufficient information for VA to identify and
obtain the unit records in
1983, relying on § 3.156(c)(2). R. at 13. The Board also found that the
appellant’s entitlement to
service connection did not arise until September 1999. R. at 14. It
further found, that “the Veteran
does not have PTSD,” and noted “[the Board] is being asked to assume a
fact that it is not in accord
with (that the Veteran has a disability related to his military service).”
R. at 13-14.
II. ANALYSIS
The appellant argues that the Board failed to consider and correctly apply
the provisions of
38 C.F.R. § 3.156(c) when assigning the effective date for his PTSD.
Appellant’s Brief (Br.) at 8;
ReplyBr. at 8. Specifically, the
appellantcontendsthattheBoarderroneouslyapplied the provisions
of 38 C.F.R. § 3.156(c)(2) (2012) and should have reconsidered his
original claim. Appellant’s Br.
at 5-6. The Secretary responds that the Board’s determination that the
appellant failed to provide
sufficient information to identify the unit records used to verify his
stressor at the time the original
1983 claim was decided is not clearly erroneous. Secretary’s Br. at 6-7,
13-14. The Secretary also
asserts that the Board found that an earlier effective date was not
warranted under § 3.156(c)(3)
because the evidence failed to show that he had a diagnosis of PTSD until
September 1999, which
is a basis independent of its reliance on § 3.156(c)(2). Secretary’s Br.
at 14. The appellant responds
that the “minimal” discussion by the Board of the provisions of § 3.156(c)(
3) did not constitute an
independent basis for denying reconsideration of the claim and that the
finding of fact was made
without VA having reconsidered the claim and without the retroactive
evaluation required by the
provisions of § 3.156(c)(4). Reply Br. at 6-7.
InJune2005,theSecretaryproposedto amend§3.156(c)”
toestablishclearerrulesregarding
reconsideration of decisions on the basis of newly discovered service
department records.” 70 Fed.
Reg. 35,388, 35,388 (June 20, 2005). Amendments to § 3.156(c) became
effective on October 6,
2

2006, and were not expressly made retroactive. See 71 Fed. Reg. 52,455 (
Sept. 6, 2006). If VA
receives or associates with the claims file relevant official service
department records that existed
and had not been associated with the claims file when VA first decided the
claim, VA will reconsider
the claim. 38 C.F.R. § 3.156(c)(1) (2012). However, under the 2006
amendment, paragraph (c)(1)
does not apply to records that VA could not have obtained when it decided
the claim because the
claimant failed to providesufficient informationfor VA to identifyand
obtain the records. 38 C.F.R.
§ 3.156(c)(2). Retroactivity is not favored by the law, and ”
congressional enactments and
administrative rules will not be construed to have retroactive effect
unless their language requires
this result.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
In Princess Cruises, Inc.
v. United States, the United States Court of Appeals for the Federal
Circuit announced three factors
that the Court must weigh to determine whether a regulation should be
given retroactive effect: (1)
“‘the natureand extent of the change of the law;'”(2)”
‘thedegreeofconnection between the operation
of the new rule and a relevant past event,'” and “‘familiar considerations
of fair notice, reasonable
reliance, and settled expectations.'” 397 F.3d 1358, 1364 (Fed. Cir. 2005) (
quoting Landgraf v. USI
Film Products, 511 U.S. 244, 270 (1994)).
The Court concludes that its recent holding in ClineNext Hit v. Shinseki, ___ Vet.
App. ___ , No.
10–3543, 2012 WL 3524832 (August 16, 2012), controls here.1
In Previous HitClineNext Hit, the Court found that the
Board erred in retroactively applying amended § 3.156(c)(2)’s exception
to deny the appellant
entitlement to an earlier effective date for his service-connected PTSD.
Id. at *9. Therefore, given
that the appellant submitted his claim to reopen prior to October 2006,
when amendments to §
3.156(c), including the addition of subsection (c)(2), took effect, the
Court is compelled in this case
to conclude that the Board erred in retroactively applying that
regulation’s exception.
TheSecretary’s argumentthattheBoarddecisionshould
beaffirmedbecausetheBoardmade
a finding of fact that the appellant was not diagnosed with PTSD prior to
1999 is mistaken. As noted
in Previous HitClineNext Hit, the version of § 3.156(c) in effect prior to October 2006
authorizes an effective date as early
1
The Court notes that, although Previous HitClineNext Hit was issued subsequent to briefing in
this matter, neither party advised
the Court of this case. See U.S. Vet.App. R. 30(b) (“When pertinent and
significant authority comes to the attention of
a party after the party’s brief has been filed or after oral argument but
before the decision, a party shall promptly file
notice with the Clerk, and serve all other parties.”)
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as the date of the original claim, up to the date of the claim to reopen,
and application of the
regulation requires a retroactive evaluation of the disability. Previous HitClineNext Document,
2012 WL 3524832, at *5 (citing
Vigil v. Peake, 22 Vet.App. 63, 65 (2008)). Here, the Board found that the
Secretary had fulfilled
his duty to assist and that no further medical examination was warranted.
See R. at 19. However,
this finding was predicated, at least in part, on the Board’s conclusion
that § 3.156(c) was precluded
in this case, on the improper grounds that an exception under § 3.156(c)(
2) (2012) applied. As
38 C.F.R. § 3.156(c) (2005) applies, a retroactive evaluation of the
disability is mandated. Id. The
duty to assist now may require the development of evidence regarding when
the appellant first
suffered from PTSD or the extent to which he suffered from PTSD prior to
the date of his claim to
reopen. See 38 U.S.C. § 5103A(a)(1) (requiring the Secretary to “make
reasonable efforts to assist
a claimant by obtaining evidence necessary to substantiate” the claim); cf.
Chotta v. Peake,
22 Vet.App. 80, 84-85 (2008) (the duty to assist requires VA to assess
whether a disability can be
rated based upon the available evidence; if not, VA must determine whether
a medical opinion,
including a retrospective opinion, “is necessary to make a decision on the
claim.”)
Therefore, the Court will vacate and remand the matter for the Board to
apply 38 C.F.R.
§ 3.156(c) (2005). The Board must determine the proper effective date for
the appellant’s PTSD
award, regardless of the date on which he provided sufficient information
for VA to obtain the
service department records, and which may be the date of the original
claim or the date on which
entitlement arose, whichever is later. See Mayhue v. Shinseki, 24 Vet.App.
273, 279 (2011).
C. Other Factual Findings
In regard to the Board’s factual findings, that “the Veteran does not have
PTSD” and “it is
being asked to assume a fact that it is not in accord with (that the
Veteran has a disability related to
his military service),” these issues were not before the Board in the
decision on appeal and,
accordingly, the Board erred in making the findings. See Cook v. Principi,
318 F.3d 1334, 1339
(Fed. Cir. 2002) (stating that the rule of finality is designed to ”
preclude repetitive and belated
readjudication of veterans’ benefits claims”); Juarez v. Peake, 21 Vet.App.
537 (2008) (Court must
vacate Board findings if Board had no jurisdiction to make them); see also
DiCarlo v. Nicholson,
20 Vet.App. 52, 55 (2006) (Board lacks jurisdiction to make findings on
issues that are not on
appeal); Bissonette v. Principi, 18 Vet.App. 105, 110 (2004) (collateral
estoppel or issue preclusion
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mayprevent relitigation of an issue of fact or law alreadydecided). If VA
believes that the appellant
was improperly granted service connection for PTSD, it may initiate a
severance determination to
the appropriate VA RO, alleging clear and unmistakable error in the rating
decision granting service
connection, while affording the appellant all required due process
procedures. See 38 U.S.C.
§ 5109A(c) (“Review to determine whether clear and unmistakable error
exists in a case may be
instituted by the Secretary on the Secretary’s own motion or upon request
of the claimant.”);
38 C.F.R. 3.105(d) (“Service connection will be severed only where
evidence establishes that it is
clearly and unmistakably erroneous. . . . When severance of service
connection is considered
warranted, a rating proposing severance will be prepared setting forth all
material facts and
reasons”). However, VA may not functionally sever benefits without
following the applicable
procedure, by ignoring findings favorable to the veteran in a prior, final
decision awarding benefits.
On remand, the appellant is free to submit additional evidence and
argument, including the
arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam order), and the Board must consider any
such evidence or argument
submitted.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed
expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring
Secretary to provide for
“expeditious treatment” of claims remanded by Board or Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s May 24, 2011, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: October 9, 2012
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
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