Veteranclaims’s Blog

October 29, 2014

Single Judge Application; Stowers v. Shinseki, 26 Vet.App. 550, 554 (2014); Claim Not Just Reopened but Reconsidered; 38 C.F.R. § 3.156(c)(1) (2014)

Excerpt from decision below:

“However, there is an exception to this rule. If at any time after a claim
is denied VA receives or associates with the claims file service department records that existed but had not been associated with the claims file at the time VA first decided the claim, VA will reconsider the claim. 38 C.F.R.
§ 3.156(c)(1) (2014). If VA thereafter makes an award based in whole or
in part on these newly associated service department records, the assigned effective date will be “the date entitlement arose or the date VA received the previously decided claim, whichever is later.” 38 C.F.R. § 3.156(c)(3); see Mayhue v. Shinseki, 24 Vet.App. 273, 279 (2011) (“[A] claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim.”). “‘In this sense,’ the Court has said of the operation of § 3.156(c), ‘the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits maybe granted.'”Stowers v. Shinseki, 26 Vet.App. 550, 554 (2014)(quoting Vigil v. Peake, 22 Vet.App. 63, 66-67 (2008)).
In all cases, the Board must provide an adequate statement of reasons or
bases for its findings on all material issues of fact and law presented. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive,and provide the reasons for its rejection of material evidence favorable to the claimant.

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“As explained in Stowers, newly associated service department records that provide at least a partial basis for a favorable medical opinion that leads to a grant of service connection may entitle a veteran to reconsideration of a prior decision and an earlier effective date under § 3.156(c). 26 Vet.App. at 554-55; see New and Material Evidence, 70 Fed. Reg. 35,388, 35,389 (June 20, 2005). Remand is necessary for the Board to address all these issues. See Tucker, 11 Vet.App. at 374.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0817
ROBERT L. REAVES, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
BARTLEY, Judge: Veteran Robert L. Reaves appeals through counsel a
December 4, 2012, Board of Veterans’ Appeals (Board) decision denying an effective date earlier than August 22, 2000, for the grant of service connection for post-traumatic stress disorder (PTSD). Record (R.) at 3-18.1
This appeal is timely and the Court has jurisdiction to review the Board’s
decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will set aside the December 2012 Board decision and remand the matter for readjudication consistent with this decision.

I. FACTS
At the outset, the Court notes that Mr. Reaves’s claims folder was lost
and rebuilt sometime
around August 1995. R. at 2671. According to the Board decision on appeal: ”
Many of the rating
actions and medical records [that were of record] prior to that time are
not available.” R. at 6; see
The Board noted that the veteran’s motion to revise a June 1990 Board
decision on the basis of clear and
unmistakable error was the subject of a separate Board decision. R. at 3;
see R. at 50-56.
1

also R. at 53, 968. The veteran served on active duty in the U.S. Army
from July 1966 to July 1969,
including service in Vietnam. R. at 1832. His DD Form 214, “Certificate of
Release or Discharge
from Active Duty,” indicates that he received the Army Commendation Medal,
the Air Medal, the
National Defense Service Medal, the Vietnam Service Medal, and the
Republic of Vietnam
Campaign Medal. Id. His military occupation specialty is listed as utility
helicopter mechanic. Id.
A service department Record of Assignments shows that, at various times,
his principal duties were
helicopter crew chief and senior utility helicopter repairman. R. at 2492.
According to a June 1990 Board decision, service medical records (SMRs)
showed that Mr.
Reaves complained of weakness, nervousness, nausea, and headaches in May
1968 and was
diagnosed with anxiety reaction. R. at 2447. In May 1969 he complained of
depression and was
diagnosed with depressive reaction. Id. In June 1969, after disobeying
orders and using drugs for
a number of months, Mr. Reaves was referred for psychiatric evaluation; he
was diagnosed with
situational reaction, and the examiner found no psychiatric illness
present. Id. The July 1969
separation examination is not in the record before the Court, but the 1990
Board decision stated that
no psychiatric complaints were made nor psychiatric disorders noted at
that time. Id.
DuringanApril1981VApsychiatricassessment,Mr.Reaves
statedhewasahelicoptercrew
chief and door gunner in Vietnam and that he took enemy fire and saw
friends killed. R. at 2494.
After taking a history and performing an examination, the examiner
diagnosed substance abuse,
atypical depression, and anti-social personality. R. at 2496. As detailed
in the December 2012
Board decision, over the years following service Mr. Reaves suffered from
alcohol and drug abuse,
depression, and erratic behavior, and was diagnosed at various times with
antisocial personality,
chronic depressive reaction, character disorder with hysterical conversion,
and undifferentiated
schizophrenia. R. at 8-13.
In August 1981, the veteran filed a claim for service connection for a
nervous condition,
which the VA regional office (RO) denied in January 1982.2
See R. at 2667. A February 1982
Supplemental Statement of the Case (SSOC) found that situational reaction
and personalitydisorder
were not considered compensable psychiatric diseases and that depressive
reaction observed in
2
The January 1982 rating decision in not in the record before the Court.
2

service was acute and resolved without disabling residuals. R. at 2669.
He appealed, and the Board
in March 1983 likewise denied the claim. R. at 2659-64.
In March 1984, Mr. Reaves sought to reopen his claim for service
connection for a “post
traumatic” nervous condition, but the request was denied in July 1984. See
R. at 2554. Although
Mr.Reaves submittedanAugust 1984statementaddressing”hisexperiences in
themilitaryservice,”
VA notified him in August 1984 of “the continued denial of service
connection for [PTSD].” See
id. His appeal was denied. See R. at 2555-56.
A December 1986 private psychiatric evaluation indicated that Mr. Reaves
had been
discharged recently from a VA hospital after being admitted for ”
depression with suicidal ideas and
post-traumatic stress syndrome.” R. at 2557. The veteran stated that he
had served in Vietnam in an
“active combat support unit for 9 months” during the war and had used
alcohol and “all kinds of
street drugs[ ] to treat himself[ ] and to cope with pain and stresses.”
Id. The examiner diagnosed
dysthymic disorder, alcohol and drug abuse, and “R/O” chronic PTSD.3
R. at 2558.
In October 1986, Mr. Reaves presented at a VA-affiliated facility with
complaints that
included fear of losing control, nightmares regardingfamilyproblems and
Vietnam events,intrusive
thoughts of Vietnam, problematic interpersonal relations, and substance
and alcohol abuse. R. at
2498, 2501-02. Although the examiner indicated that Mr. Reaves was
somewhat vague about in-
service traumas, the veteran reported experiencing mortar and rocket-
propelled grenade attacks near
him on his base and having a tracer-round explode a few feet from him
while serving as a helicopter
door gunner. R. at 2499-2500. The examiner found “no clear indication of [
PTSD] and diagnosed
substance abuse and a passive aggressive personality disorder. R. at 2506.
Mr. Reaves was hospitalized in October and November 1987 at a VA facility
with a “chief
complaint” listed as PTSD. R. at 2508. The discharge summary states he
reported that he had
stopped abusing drugs recently and “that he came out of a drug haze and
began having more
nightmares about flames and bodies being torn apart by bullets, soldiers
being decapitated, and
shooting enemy soldiers from his Vietnam experience.” Id. The veteran
opined that this, in turn,
3
The abbreviation “r/o” means “rule out,” which “is typically used to
identify an alternative diagnosis that is
being actively considered, but for which sufficient data has not yet been
obtained.” ALVIN E. HOUSE, DSM-IV
DIAGNOSISIN THE SCHOOLS 33 (2002). It is “a reminder or instruction to
continue seeking the information which would
allow a diagnosis to be conclusively identified or eliminated from
consideration (for the present).” Id.
3

led to discord with his family and suicidal and homicidal ideation, which
resulted in his hospital
admission. R. at 2508-09. During his hospitalization, Mr. Reaves
complained of frequent
nightmares of Vietnam. R. at 2510. His overall situation improved and he
was discharged with
diagnoses of PTSD, dysthymic disorder, marital conflict, and polysubstance
abuse. R. at 2508.
A January1988 assessment update noted that Mr. Reaves had been referred
byVA following
release from hospitalization for suicidal ideation, Vietnam nightmares,
substance abuse, and a
possible PTSD diagnosis. R. at 2514. The author indicated that Mr. Reaves
had depressed mood and
expressionless affect and complained of increased anxiety and stress,
especially relating to family
discord and legal troubles. R. at 2514. Substance abuse, passive
aggressive personality disorder,
dysthymic disorder, and malingering were diagnosed. R. at 2515.
A June 1988 SSOC reviewed this evidence but continued to deny entitlement
to service
connection, finding that “[PTSD] is not shown to exist.” R. at 2549-51. In
November 1989, after
the veteran had appealed to the Board, the Board Chairman requested
advisory medical opinions as
to whether “the recent [October 1986] diagnosis of [PTSD] [is] supported
by the record and, if not,
does the veteran have any other acquired psychiatric disorder which may
reasonably be traced to
service.” R. at 2535-36.
Two opinions were obtained in response to the Chairman’s request. The
first, a January1990
opinion from VA physician Craig Morin, diagnosed PTSD and stated that this
diagnosis was
supported by the evidence of record. R. at 2540. In support of his opinion,
Dr. Morin cited Mr.
Reaves’s complaints of frequent recollection and war nightmares, loss of
control, sleep disturbances,
startle reaction to loud noises, avoidance of combat stimuli, and a
restricted range of affective
response. Id. Dr. Morin further wrote:
Mr. Reaves did have significant and life threatening stress namely from
combat in
Vietnam as a helicopter door gunman (left door gun UH-1D). Several notes
mention
his being shot at with rocket propelled grenades and mortar rounds landing
near to
him. A tracer shell exploded two feet from his face, while on a helicopter
mission.
Mr. Reaves was in combat while he was a teenager.
Id. Finally, Dr. Morin opined that Mr. Reaves’s substance abuse, marital
discord, domestic violence,
and difficulty”verbalizing his recollections of combat” are “commonly seen
accompanying” PTSD.
Id.
4

A second February 1990 opinion was obtained from Dr. Paul Errera,
Director of the Mental
Health and Behavioral Sciences Service within VA. R. at 2538. Dr. Errera
also diagnosed PTSD
on the basis that Mr. Reaves experienced life-threatening stresses in
combat while in service as a
helicopter door gunner. Id. As did Dr. Morin, Dr. Errera indicated that Mr.
Reaves experienced a
range of symptoms—difficulties with substance abuse, marital discord,
domestic violence, and
trouble verbalizing recollections of combat—that were associated and
consistent with PTSD. Id.
In June 1990, the Board denied service connection for PTSD. After
reviewing the extensive
evidence (R. at 2446-54), the two-member majority noted that “[f]or years,
on those occasions when
the veteran mentioned his service experiences to health care providers, he
did not relate typical
symptoms of PTSD and did not allege combat or similar stressful events.” R.
at 2456. Only in the
1980s, the majority found, did “the veteran beg[i]n to recite the well
publicized list of PTSD
symptoms and . . . allege that he had life-threatening experiences in
Vietnam.” Id. “These
presentations appear unspontaneous, improperly motivated, in conflict with
findings and history
contained in extensive earlier records, and generally unreliable.” Id.
Although Mr. Reaves reported
suffering enemy attacks while protecting his helicopter and a near hit by
a tracer round while
operating a door gunner (R. at 2452), the Board found that he was not
credible regarding allegations
of life-threatening stressors (R. at 2456).
The Board assigned more probative value to the October 1986 VA opinion
that found “no
clear indication of [PTSD]” and diagnosed substance abuse and a passive
aggressive personality
disorder” (R. at 2506) than to the 1990 VA opinions diagnosing PTSD
because the former opinion
was made by “[a] clinician[ ] in the field, who ha[s] personally dealt
with the veteran and ha[s] a
more intimate knowledge of his background and credence,” whereas the 1990
opinions appeared
“premised on historical accounts and symptoms recently offered by the
veteran which [the Board
did] not find credible.” R. at 2457 (emphasis added). Among the findings
of fact the Board made
were that Mr. Reaves “did not experience stressors of such a nature or
gravity as might reasonably
lead to the development of [PTSD]” and that the record did not show “[PTSD]
related to service . . .
[or] a supportable diagnosis of such disorder.” R. at 2457-58.
One Board member dissented. He criticized the majority for “attack[ing]
the veteran’s
credibility[ and] suggesting that his accounts of military service were
either inadvertent distortions
5

or deliberate lies to support his claim for compensation.” R. at 2390.
The dissenting member went
on to indicate that he believed that Mr. Reaves had “described several
incidents that occurred during
Vietnam service, which qualify as adequate stressors for the development
of [PTSD].” R. at 2391
(2375-92).
Furthermore, he found the advisory opinions obtained by the Board Chairman
“compelling” given the stature of the experts offering the opinions,
stating that at the veryleast there
existed a reasonable doubt that should have been resolved in Mr. Reaves’s
favor. Id.
InJune1993,Mr.Reaves
movedforBoardChairmanreconsiderationoftheJune1990Board
decision. R. at 2422-36. As an exhibit attached to the motion, the veteran
submitted a November
1968 service record from the 101st Assault Helicopter Battalion that
certified to “Operations” that
Mr. Reaves was “medicallyqualified to perform dutyas a aerial gunner”and
gave medical clearance.
R. at 2529. The motion referred to this exhibit as a “new military record
[ ].” R. at 2423; see also
R. at 2436. The motion also argued that, under 38 U.S.C. § 1154(b), Mr.
Reaves’s lay statements
should have been accepted as sufficient to establish in-service stressors.
R. at 2434-36. In August
1996, the Board Chairman denied reconsideration, stating that the June
1990 Board decision
disallowed service connection for PTSD because the evidence did not show a
current PTSD
diagnosis; as such, consideration of evidence regardingstressors was
irrelevant becauseit “could not
change the outcome” of the Board decision. R. at 2110; see R. at 2109-11.
A few years later (although precisely when is not clear), Mr. Reaves
applied to the Army
Board for Correction of Military Records (ABCMR) for the “correction of
his records to show the
authorities for [the] award of the Air Medal and the Army Commendation
Medal.” R. at 1598. In
January 1997, the ABCMR found that Mr. Reaves was entitled to (1) the Army
Commendation
Medal as a member of the 101st Airborne Division pursuant to a March 27,
1969, order; (2) the Air
Medal for the period of November 29, 1968, to January 22, 1969; and (3)
the Vietnam Civil Actions
Honor Medal First Class Unit Citation. R. at 1600. A DD Form 215, ”
Correction to DD Form 214,”
was issued in February 1998. R. at 1951. As a basis for this correction,
the ABCMR determined
that Mr. Reaves “provided documents showing that he was cleared to perform
duty as an aerial
gunner from 29 November 1968 to 22 January 1969” and concluded that the
Air Medal, which was
awarded in times of war based upon the number and types of missions or
hours, was properly
awarded to Mr. Reaves. R. 1599. Specifically, the ABCMR wrote:
6

U.S Army Vietnam Regulation 672-1 provided, in pertinent part, guidelines
for
award of the Air Medal. It established that passenger personnel who did
not
participate in an air assault were not eligible for the award based upon
sustained
operations. It defined terms and provided guidelines for the award based
upon the
number and types of missions or hours. Twentyfive Category I missions (air
assault
and equally dangerous missions) was the standard established for which
sustained
operations were deemed worthy of recognition by an award of the Air Medal.
However, the regulation was clear that these guidelines were considered
only a
departure point and that nothing created an entitlement to the award. . . .
The Board notes that the applicant was assigned to an aviation unit and
was assigned
helicopter aerial gunnery and crew chief duties. Based on previous cases
of a similar
nature, the Board has determined that the applicant met the requirement
for sustained
operations, that he would easily have qualified for award of an Air Medal
in [two]
months of service as a door gunner or crew chief, and that it would be an
injustice to
deny issuance of this award due to lack of orders, particularly when it is
already
shown on his DD Form 214. Therefore, the Board finds that the applicant is
entitled
to an award of the Air Medal for meritorious service during the period 29
November
1968 to 22 January 1969.
R. at 1599; see R. at 1951 (DD Form 215). The Acting Director of ABCMR
then issued a
memorandum to the Commander of the U.S. ArmyReserve Personnel Center in St.
Louis, Missouri,
stating: “Under the authority of Title 10, United States Code, section
1552, . . . it is directed that all
of the Department of the Army records of the individual concerned be
corrected as shown under
Recommendation in the Proceedings of the ABCMR in this case.” R. at 1596.
On August 22, 2000, Mr. Reaves filed a request to reopen the claim for
service connection
for PTSD. R. at 1798-1815. He claimed stressors such as taking anti-
aircraft fire while serving as
a helicopter door gunner, seeing fellow service members wounded, and
receiving enemy fire at
various Army installations. R. at 1805-14. The RO denied the request in
December 2001, finding
that new and material evidence had not been submitted to reopen the claim.
R. at 1693-97. The RO
stated that “[a] credible verified stressor is not of record” and that “[p]
ast records did not indicate a
clear diagnosis of [PTSD].” R. at 1694. The veteran filed a Notice of
Disagreement (NOD) as to
this decision. R. at 1646. When in September 2002 the RO again found new
and material evidence
to reopen a PTSD service connection claim had not been submitted (R. at
1585-89), he appealed to
the Board (R. at 1561-62, 1578).
In January 2005, the Board found that evidence submitted since the prior
final June 1990
7

Board decision—private and VA treatment records and numerous lay
statements—were new and
material. Consequently, the Board reopened the claim for PTSD service
connection and remanded
the matter for the RO to schedule a VA examination as to whether PTSD was
a current disability
linked to service. R. at 1467-77.
Mr. Reaves underwent the ordered examination in April 2005. The examiner
recounted the
veteran’s psychiatric and substance abuse history and symptoms such as
avoidance, social isolation,
flashbacks, intrusive memories, difficulty sleeping, violence, and suicide
attempts. R. at 1455-57.
The examiner then opined: “Ibelieve that the veteran does meet DSM-IV [
Diagnostic andStatistical
Manual of Mental Disorders, Fourth Edition] stressor criteria. . . . [and]
one of the difficulties that
hehashadwith previousreviews is his difficultyin communicatingwith
theexaminerswhatactually
happened to him. He has difficulty focusing on the bigger picture and gets
bogged down in
describing details.” R. at 1457. The examiner noted one Vietnam incident
where Mr. Reaves
reported being 30 feet from a building when it was bombed. R. at 1455. “I
am convinced,” the
examiner stated, “that he did experience events that are outside the
normal range of human
experience. He found witnessing those events traumatic and theyhave
affected the quality of his life
since he left the military.” R. at 1457. Thus, the examiner concluded that
Mr. Reaves suffered from
PTSD attributable to service. R. at 1458-59.
In August 2005, the RO granted serviceconnection for PTSD and assigned a
50% evaluation
effective December 11, 2001, the date VA received the request to reopen. R.
at 1447-54. Under
“EVIDENCE,” SMRs from July 29, 1966, through July 18, 1969, were listed;
the April 2005 VA
examination; and the VCAA letter sent to the veteran. R. at 1450. The RO
stated that “[t]he April
2005 examiner noted you meet the DSM-IV stressor criteria.” R. at 1452. Mr.
Reaves filed a
February2006 NOD as to the evaluation and effective dates assigned. R. at
1377-79. The RO issued
an August 2006 Statement of the Case assigning an August 22, 2000,
effective date but no earlier
for the award of service connection for PTSD. R. at 1186-1206. In November
2010, the Board
denied entitlement to an effective date earlier than August 22, 2000. R.
at 962-72.
On appeal to this Court, the parties filed a joint motion for partial
remand, agreeing that the
Board failed to consider 38 C.F.R. § 3.156(c) when determining whether Mr.
Reaves was entitled
to an earlier effective date for the award of service connection for PTSD.
R. at 286-94. Specifically,
8

the parties noted that “corrected service records—which existed in
January 1997, before being
associated with the claims file in February 2000—relate to [the
veteran’s] claimed in-service
stressors as a door gunner.” R. at 290; see also R. at 292. The Court
granted the motion in August
2011. R. at 285. Mr. Reaves submitted argument to the Board in November
2011, in which he
asserted that his claim for service connection for PTSD “was reopened and
granted, in part, based
on service records which indicate that he is a combat veteran” and that ”
the Department of the Army
corrected Mr. Reaves’ service records to show that he was awarded and
authorized to wear the Air
Medal and the Army Commendation Medal.” R. at 285.
In the December 2012 decision on appeal, the Board denied entitlement to
an effective date
earlier than August 22, 2000, for the award of service connection for PTSD.
The Board found that
the August 2005 grant of service connection for PTSD was based on the
April 2005 VA diagnosis
and opinion that PTSD was connected to service. R. at 44. “The examiner
did not provide much
detail as to the specifics of the [v]eteran’s claimed stressors,” the
Board remarked, but “[s]he noted
how the events of the [v]eteran’ s service in Vietnam affected him and
that she felt he met the criteria
for a diagnosis of PTSD.” Id. The Board also noted that “the [v]eteran’s
duties as a crew chief and
door gunner are not mentioned in the [decision].” Id. The Board determined
that, in contrast, the
June1990Boarddecisiondeniedserviceconnectionbecause”theweight
oftheevidencewasagainst
a finding of a clear diagnosis of PTSD, a requirement for the grant of
service connection.” Id.; see
also R. at 43 (“The [v]eteran was denied service connection for PTSD in
June 1990 because the
Board found that the evidence of record did not establish a diagnosis of
PTSD.”). A clear PTSD
diagnosis supported by a detailed history of stressful events or by
certain awards indicative of
combat, the Board observed, was mandated by paragraph 50.45 of VA
Adjudication Procedures
Manual (M21-1), which applied to PTSD claims at the time. R. at 42-43
The Board found that “the grant of service connection for PTSD in August
2005 was not
related, in any way, to the correction of the [v]eteran’s military records
as indicated in the ABCMR
[decision] of January 1997” and that the veteran “was noted to have an Air
Medal on his DD 214 at
the time of the prior decisions in this case.” R. at 44. The ABCMR
decision, thus, “did not make
any difference in the evaluation of the [v]eteran’s claim.” Id. In making
this determination, the
Board stated that “the stressors associated with his service that resulted
in his receiving the Air
9

Medal were of record” at the time of the June 1990 Board decision. R. at
45. Ultimately, then, the
Board distinguished this case from others where § 3.156(c) operated to
award an earlier effective
date. R. at 44-45. This appeal followed.
II. ANALYSIS
Mr.Reaves arguesthattheBoardofferedinadequatereasons
orbasesfordenyingentitlement
to an earlier effective date for the award of service connection for PTSD
based on § 3.156(c).
Generally, he contends that the Board did not explain the basis for its
finding that the June 1990
Board decision did not dispute his claimed stressors or combat service;
indeed, Mr. Reaves asserts
that this findingis clearlycontradicted bythe 1990 decision and that if
such were acknowledged then
service department records newly associated with his file after June 1990,
and partially leading to
the 2005 award of service connection, would require an earlier effective
date under § 3.156(c).
Appellant’s Brief (Br.) at 18-27. More specifically, the veteran argues
that the Board failed to
address the November 1968 service department record stating he was
medically qualified to serve
as an aerial gunner and, alternatively, to the extent that the Board
considered and tacitly found that
this document was already in the record at the time of the June 1990 Board
decision, failed to
support this finding. Id. at 23-24. Also, Mr. Reaves contends that the
Board provided an inadequate
explanation for finding that the August 2005 award of service connection
for PTSD was not related
to the January 1997 ABCMR decision. Id. at 25-26. He asks that the Board
decision be set aside
and the matter remanded for readjudication and an adequate statement of
reasons or bases. Id. at 27.
The Secretary disputes these contentions. He argues that the Board
explained that “both the
legal criteria for establishing service connection for PTSD and [Mr.
Reaves’s] psychiatric condition
changed since the 1990 denial.” Secretary’s Br. at 9. According to the
Secretary, the grant of service
connection was based on the 1993 promulgation of 38 C.F.R. § 3.304(f) (
specifying the criteria for
a PTSD service connection claim) and the April 2005 VA examiner’s
diagnosis of PTSD, not the
November 1968 service department record or the January 1997 ABCMR decision.
The Secretary
also disagrees with the veteran’s contention that the November 1968
service department record
showing that he received medical clearance to perform duty as an aerial
gunner was not before the
Board in 1990. Id. at 9-10, 12-14. Finally, the Secretary argues that the
Board correctly found that
10

the 1990 Board decision did not dispute Mr. Reaves’s claimed stressors or
combat status but rather
doubted that the stressors, as reported, were sufficient to support a PTSD
diagnosis. Id. at 10-12.
Mr. Reaves, in turn, disputes these arguments. Reply Br. at 1-10.
The effective date for an award of service connection based on a reopened
claim is usually
the date that the request to reopen was received or the date entitlement
arose, whichever is later.
38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i), (r) (2014). Therefore,
the general rule is that “the
effective date of an award of service connection is not based on the date
of the earliest medical
evidence demonstrating a causal connection, but on the date that the
application upon which service
connection was eventually awarded was filed with VA.” Lalonde v. West, 12
Vet.App. 377, 382
(1999). See generally Sears v. Principi, 349 F.3d 1326, 1328-32 (Fed. Cir.
2003) (upholding VA’s regulatory determination that the effective date for an award made pursuant to a request to reopen generally cannot predate the request).
However, there is an exception to this rule. If at any time after a claim
is denied VA receives or associates with the claims file service department records that existed but had not been associated with the claims file at the time VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1) (2014). If VA thereafter makes an award based in whole or in part on these newly associated service department records, the assigned effective date will be “the date entitlement arose or the date VA received the previously decided claim, whichever is later.” 38 C.F.R. § 3.156(c)(3); see Mayhue v. Shinseki, 24 Vet.App. 273, 279 (2011) (“[A] claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim.”). “‘In this sense,’ the Court has said of the operation of § 3.156(c), ‘the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits maybe granted.'”Stowers v. Shinseki, 26 Vet.App. 550, 554 (2014)(quoting Vigil v. Peake, 22 Vet.App. 63, 66-67 (2008)).
In all cases, the Board must provide an adequate statement of reasons or bases for its findings on all material issues of fact and law presented. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive,and provide the reasons for its rejection of material evidence favorable to the claimant.
11

Allday v. Brown, 7 Vet.App. 517, 527 (1995); Caluza v. Brown, 7 Vet.App.
498, 507 (1995), aff’d
per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). When a claimant’s file
is lost, VA has a heightened
duty to assist the veteran in developing evidence from alternate or
collateral sources. Cromer v.
Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006); see Washington v.
Nicholson, 19 Vet.App. 362,
370 (2005) (“[W]hen VA is unable to locate a claimant’s records, it should
advise him to submit
alternative forms of evidence to support his claim and should assist him
in obtaining sufficient
evidence from alternative sources.”). The Board also has a heightened
obligation to explain the
reasons or bases for its findings and conclusions and to consider the
benefit of the doubt rule.
Washington, 19 Vet.App. at 371; O’Hare v. Derwinski, 1 Vet.App. 365, 367 (
1991). The benefit of
the doubt applies to “any issue material to the determination of a matter”
when “there is an
approximate balance of positive and negative evidence.” 38 U.S.C. § 5107(
b).
A. November 1968 Service Department Record
The parties dispute whether the November 1968 service department record
that showed that
Mr. Reaves was cleared to perform duty as an aerial gunner was associated
with the claims file at
the time of the June 1990 Board denial of service connection for PTSD. The
Board decision on
appeal mentions this record (R. at 24, 32) but does not discuss whether it
was associated with the
claims file in June 1990 and, if it was so associated, whether it formed a
partial basis for the 2005
award of service connection. R. at 45; see 38 C.F.R. § 3.156(c).
The veteran argues that evidence shows that the 1968 service department
record was not
before the Board at the time of the June 1990 decision. He cites the fact
that the June 1993 motion
for Board Chairman reconsideration of the June 1990 Board decision
describes the submitted
November 1968 document as a “new military record[ ]” (R. at 2423), as well
as the fact that the June
1990 Board decision stated merely that Mr. Reaves “report[ed] he had other
duties such as door
gunner” (R. at 2388), rather than indicating that service record evidence
established this duty (as it
did for helicopter repairman duties). Appellant’s Br. at 23-24. The
Secretary states that “[i]t is not
clear whether this particular record was before the Board [in June 1990]
because the Board did not
mention it . . . and because [the] claims file had to be rebuilt in August
1995.” Secretary’s Br. at 13.
According to the Secretary, however, the question is irrelevant because
the 1990 Board decision did
not dispute whether Mr. Reaves served as an aerial gunner in Vietnam, only
whether adequate
12

stressors to support a PTSD diagnosis had been shown. Id.
When determining the applicability of § 3.156(c), a key preliminary
inquiry is whether the
service department record under consideration has been newly associated
with the claims file.
38C.F.R.§3.156(c)(1).However,theBoarddecisiononappeal failedtodiscuss
theNovember1968
service department record in its § 3.156(c) analysis and therefore did
not discuss evidence that
suggests the November 1968 record was associated with the claims file only
in 1993, as part of the
June 1993 motion for Board Chairman reconsideration and not prior to that
time. See, e.g., R. at
2423; see also R. at 1832, 2492 (the veteran’s DD 214 and a service
department record of assignment
listing utility helicopter mechanic, helicopter crew chief, and senior
utility helicopter repairman),
2388 (June 1990 Board decision suggesting that door gunner duties were
substantiated only by the
veteran’s statements). This is potentially favorable evidence that the
Board must discuss in ordinary
circumstances. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 507.
But, because Mr. Reaves’s claims file was lost and rebuilt between the
time of the June 1990
Board denial and the 2005 reopening, the Board was under a heightened
obligation to explain the
reasons or bases for its findings and conclusions, as well as to consider
the benefit of the doubt rule.
See Washington, 19 Vet.App. at 371; O’Hare, 1 Vet.App. at 367. The Board’s
failure to address the
1968 service department record in the effective date decision here under
consideration and to offer
adequate reasons or bases regarding the date that it was first associated
with Mr. Reaves’s claims file
and the import of that record on the later award of service connection
requires remand. See Tucker
v. West, 11 Vet.App. 369, 374 (1998) (holding that, when the Board’s
reasons or bases are
inadequate, remand in the proper remedy).
Given the heightened Board obligation, the Court is surprised at the
Secretary’s suggestion
that the lack of clarity regarding whether the November 1968 record was
before the Board in June
1990 should be resolved against the veteran. See Secretary’s Br. at 13. It
is difficult to see how such
resolution would be consistent with the “benefit of the doubt” standard of
proof. See 38 U.S.C.
§ 5107(b). Certainly the Court cannot make in the first instance any
determination as to when that
record was associated with the veteran’s file. See Kyhn v. Shinseki, 716 F.
3d 572, 575 (Fed. Cir.
2013). On remand, the Board must address whether the November 1968 service
department record
was newly associated with the claims file after the June 1990 Board denial
and, if so, whether the
13

later grant of serviceconnection was based in whole or in part on that
record, addressing all evidence
mentioned herein and resolving reasonable doubt in the veteran’s favor.
B. Board Reasons or Bases as to Whether the 2005 Award Was Partially Based
on Any Newly
Associated Service Department or Corrected Service Department Records
The Board found that the June 1990 Board decision “did not dispute [Mr.
Reaves’s] claimed
stressors or his combat experience,” and, therefore, that any SMR that
demonstrated or supported
that he participated in combat could not have been a partial basis for the
2005 grant of service
connection. Rather, the Board found that the 1990 decision denied service
connection because the
Board was dubious of claimed PTSD symptoms and determined there was no ”
clear diagnosis of
PTSD.” R. at 44. The veteran contends that the Board failed to support its
finding that the 1990
decision did not dispute stressors and combat experience, noting that it
specifically found that
“[d]uring service he did not experience stressors of such a nature or
gravity as might reasonablylead
to the development of [PTSD].” R. at 2389; see Appellant’s Br. at 22. And
he argues that, because
the “only” records added to the claims file between the June 1990 Board
decision and the August
2005 RO decision granting service connection for PTSD were service records,
they must have
formed the basis for the grant of service connection.4
Appellant’s Br. at 22-23. In response, the
Secretary contends that in the decision on appeal the Board plausibly
found that “the 1990 decision
did not find that the stressor events reported by [the veteran] did not
occur, but only that they were
not of such severity or nature so as to support a finding of PTSD.”
Secretary’s Br. at 11. This was
consistent with the “high bar to establishing a PTSD diagnosis” in 1990,
the Secretary asserts. Id.
at 11-12. The Court agrees with Mr. Reaves.
It is clear to the Court that the June 1990 Board decision impugned the
veteran’s credibility
both as to whether stressors occurred and as to his description of the
stressors. According to the
1990 Board decision, Mr. Reaves’s reports of “life-threatening experiences
in Vietnam” were
“unspontaneous, improperly motivated, in conflict with findings and
history contained in extensive
earlier records, and generally unreliable.” R. at 2456. Therefore,
although the Secretary argues to
4
Although the Court notes that the November 1968 service department record
was not the “only” record added
to the claims file between the June 1990 Board decision and that an April
2005 VA examination report was also added
(R. at 1455-59), the Court also observes that § 3.156(c) only requires
that a newly associated record be at least a partial
basis for an award, not the sole basis for an award.
14

the contrary, the Court finds that the June 1990 Board decision clearly
disputed that the claimed
stressors occurred.
It is true that at the time of the 1990 Board decision there was a “high[
er] bar to establishing
a PTSD diagnosis” than there is now, in that in 1990 a PTSD diagnosis
required exposure to a
stressor, inter alia, “markedly distressing to almost anyone,” whereas in
2005 the requirement was
more individualized.
CompareDIAGNOSTICANDSTATISTICALMANUALOFMENTALDISORDERS247
(3d ed., rev. 1987) [hereinafter DSM-III-R] with DIAGNOSTIC AND
STATISTICAL MANUAL OF
MENTALDISORDERS 463 (4th ed., text rev. 2000) (requiring that the
individual exhibit an emotional
response that involves intense fear, helplessness, or horror). But it is
difficult to understand how Mr.
Reaves’s alleged stressors, if believed in 1990, would not have met the
higher requirement of being
markedly distressing to almost anyone. See, e.g., R. at 2499-2500 (
veteran’s October 1986 report of
suffering, inter alia, mortar and rocket-propelled grenade attacks while
on base at Camp Eagle and
having a tracer-round explode a few feet from him while serving as a
helicopter door gunner). Thus,
the Court cannot accept the Secretary’s argument or the December 2012
Board determination (R. at
44) that the June 1990 Board decision did not dispute the occurrence of Mr.
Reaves’s alleged
stressors.
The Board decision on appeal is unsuccessful in attempting to separate the
1990 Board’s
rejection of a credible stressor from its finding that there was not a
clear diagnosis of PTSD.
According to the DSM-III-R in effect in 1990, the essential feature of
PTSD at that time was the
“development of characteristic symptoms following a psychologically
distressing event that is
outside the range of human experience.” DSM-III-R at 247; see Cohen v.
Brown, 10 Vet.App. 128,
146 (1997) (noting that the sufficiency of a claimed in-service stressor
is part of the medical
diagnosis of PTSD). Therefore, if at the time of the June 1990 Board
decision VA did not find that
the veteran had been exposed to such an event or events, there could be no
diagnosis of PTSD.
This is clear from the fact that a private January 1990 medical opinion
and a February 1990
VA medical opinion both diagnosed Mr. Reaves with PTSD (R. at 2538, 2450),
but the Board
rejected these diagnoses because they were “premised on historical
accounts . . . recently offered
by the veteran which [the Board did] not find credible.” R. at 2457 (
emphasis added); see also R.
at 2390 (dissenting 1990 Board member criticizing the majority for “attack[
ing] the veteran’s
15

credibility[ and] suggesting that his accounts of military service were
either inadvertent distortions
or deliberate lies to support his claim for compensation”).
As to the Secretary’s argument that it is “illogical” to conclude that the
addition of the
November 1968 service department record led to a finding that Mr. Reaves’s
alleged stressors were
consistent with a PTSD diagnosis because no specific stressor was
identified in the August 2005
decision granting service connection, the Court is unpersuaded. Id. at 12-
13. The Secretary
overlooks that if the 1968 service department record showed or convinced
VA that Mr. Reaves
participated in combat, and he had alleged the development of PTSD due to
combat, no specific
stressor event would need to be identified. Where VA determines that a
veteran engaged in combat
with the enemy and claimed stressors are related to such combat, the
veteran’s lay testimony
regarding claimed stressors are accepted as conclusive as to their
occurrence and no further
development for corroborative evidence will be required, provided that
lay testimony is satisfactory,
consistent with circumstances of service, and not contradicted by clear
and convincing evidence.
38 U.S.C. § 1154(b); see also Cohen, 10 Vet.App. at 146; 38 C.F.R. § 3.
304(f)(2) (2014); Direct Service Connection (Post-Traumatic Stress Disorder), 57 Fed. Reg. 34,536 (Aug. 5, 1992) (“[W]hen service department records indicate that the veteran engaged in combat or was awarded a combat citation and the claimed stressor is related to the combat experience, further development to document the occurrence of the claimed stressor in unnecessary.”); VA ADJUDICATION PROCEDURES MANUAL (M21-1), Part VI, para. 7.46e (Dec. 21, 1992).
In this case, however, because the Board did not discuss whether the
November 1968 service department record was newly associated with the file, it also failed to address whether that record, in conjunction with Mr. Reaves’s lay statements, established combat participation or convinced VA of that participation, which would obviate the need for verification of a particular stressor event. If the August 2005 RO decision granting service connection for PTSD relied on the 1968 record to conclude that Mr. Reaves participated in combat, then, contrary to the Secretary’s assertion(Secretary’s Br. at 12-13), it would not have been necessary for VA to identify a specific stressor
event.
Thus, the Board decision requires remand because it failed to discuss
whether the November
1968 service department record, if newly associated with the file,
established combat participation
16

or convinced VA that he had participated in combat such that the RO in
2005 was relieved of having
to obtain verification of a particular stressor, and therefore was a
partial basis for the grant of service
connection. See Hamilton v. Derwinski, 2 Vet.App. 671, 675 (1992) (
remanding for the Board to
determine whether evidence of service in combat zone established
engagement in combat with the
enemy, thereby requiring acceptance of alleged stressor). In addition,
even if the November 1968
service department record were not sufficient to establish combat
participation, the Board failed to
adequately discuss whether the record corroborated a specific stressor or
stressors, leading to the
August 2005 grant of service connection for PTSD.
Consequently, the Court is persuaded that the Board decision on appeal did
not adequately
explain its reasons or bases for finding that the June 1990 Board decision
denied service connection
for PTSD based solely on the lack of a PTSD diagnosis. In undertaking the
required analysis on
remand, the Board should explicitly discuss relevant facts that it appears
it did not consider.
First, the Board should consider that, although Mr. Reaves may have
alleged being an aerial
gunner prior to submission of the June 1996 motion for Board Chairman
reconsideration, there
appears to be no service record evidence of combat participation, so the
grant of service connection
may have been based in part on the November 1968 service department record
medically clearing
Mr. Reaves for door gunner duty. Compare R. at 1451 (August 2005 RO
decision stating: “Review
of your [SMRs] show you were stationed in the Republic of Vietnam as a
door gunner on a
helicopter for eight months.”), with R. at 1574 (February2003 SSOC stating
that PTSD stressors are
not confirmed).
Second, although the January 2005 Board decision reopened the PTSD service
connection
claim based on new diagnoses of PTSD (R. at 1467-77), the August 2005 RO
decision granting service connection noted that the evidence it considered included, in addition to the April 2005 VA examination, SMRs dated July1966 through July1969 (R. at 1450). As explained in Stowers, newly associated service department records that provide at least a partial basis for a favorable medical opinion that leads to a grant of service connection may entitle a veteran to reconsideration of a prior decision and an earlier effective date under § 3.156(c). 26 Vet.App. at 554-55; see New and Material Evidence, 70 Fed. Reg. 35,388, 35,389 (June 20, 2005). Remand is necessary for the Board to address all these issues. See Tucker, 11 Vet.App. at 374.
17

On remand,the Board must also provide adequate reasons or bases for rejecting the probative value of the January 1997 ABCMR decision. The Board stated that the
January 1997 ABCMR
decision did not “correct” any service department record but merely
corrected an internal Army
irregularity that could not find support for the Air Medal listed on the
veteran’s DD 214. R. at 42.
This statement fails to acknowledge the findings made by the ABCMR, namely,
that the Air Medal
was awarded for sustained operations, which constituted 25 “air assault or
equally dangerous
missions”; that passenger personnel were ineligible for an Air Medal
awarded on this basis; and that
based on Mr. Reaves’s duty as a door gunner he met the requirement of
sustained operations. R. at
1599. The January 1997 ABCMR decision therefore determined that “it would
be appropriate to
correct [Mr. Reaves’s] records” to reflect these findings and, pursuant to
10 U.S.C. § 1552, ordered
correction accordingly. Id. The Acting Director of ABCMR then issued a
memorandum to the
Commander of the U.S. Army Reserve Personnel Center in St. Louis, Missouri,
stating: “Under the
authority of Tile 10, United States Code, section 1552, . . . it is
directed that all of the Department
of the Army records of the individual concerned be corrected as shown
under Recommendation in
the Proceedings of the ABCMR in this case.” R. at 1596.
It is difficult for the Court to discern, given the plain terms of the
January 1997 ABCMR
decision, the Board’s basis for finding that the 1997 action was not a
correction of military records.
Moreover, in light of the Court’s previous determination that the 1990
Board decision clearly
impugned the veteran’s credibility as to the type and severity of
stressors, which stemmed from
reported combat participation, the Court is unable to accept as sufficient
the bare statement in the
decision on appeal that the June 1990 Board decision did not question the
veteran’s military awards
and conditions of service. R. at 42. Thus, after considering the findings
set forth in the January1997
ABCMR decision, the Board must reconsider the probative value assigned to
the record correction
decision and adequately explain its determination.5
Finally, the Court observes that, although adjudication and arguments have
focused on
§ 3.156(c), neither the Board nor the parties addressed, alternatively,
whether the January 1997
The Secretary contends that the January 1997 ABCMR decision does not
provide evidence of actual events
in Mr. Reaves’s service. Secretary’s Br. at 14. However, the Board never
addressed this question, and the Court declines
to speculate on it in the first instance. See Maggitt v. West, 202 F.3d
1370, 1377-78 (Fed. Cir. 2000).
5
18

ABCMR decision might entitle Mr. Reaves to an earlier effective date for
service connection under
38 U.S.C. § 5110(i) and 38 C.F.R. 3.400(g). Where a claim is disallowed
but subsequentlyreopened
and benefits are granted based on new and material evidence resulting from
the correction, change,
or modification of a military record by a service department pursuant to
10 U.S.C. § 1552, the
effective date of benefits maybe the latest of (1) the date the
application for correction was filed with
the service department, (2) the date of receipt of the disallowed claim,
or (3) one year prior to the
date the disallowed claim was reopened. 38 U.S.C. § 5110(i); 38 C.F.R. 3.
400(g) (2014). On
remand, the Board should consider whether the January1997 ABCMR decision
apparently
correcting, changing, or modifying a service department record could
provide an earlier effective
date under § 3.400(g), keeping in mind that claimants are generally
presumed to be seeking the
maximum benefit allowed bylaw, AB v. Brown, 6 Vet.App. 35, 38 (1993), and
that § 3.156(c) would
appear to offer maximum benefits for Mr. Reaves. See Jones v. Shinseki, 23
Vet.App. 122, 126
(2009) (“The Board is required to discuss all relevant evidence and all
‘potentially applicable’ laws
and regulations.” (citing 38 U.S.C. § 7104(d))).
Thus, in addition to providing reasons or bases as to its consideration of
the November 1968
service department record, the Board must also address the issues the
Court has identified in its
consideration of the January 1997 ABCMR decision. On remand, Mr. Reaves is
free to present
additional arguments and evidence to the Board in accordance with
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16
Vet.App. 529, 534
(2002). The Court reminds the Board that “[a] remand is meant to entail a
critical examination of the justification for[the Board’s] decision,”Fletcher v.Derwinski,1Vet.App.394, 397(1991),and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing, the December 4, 2012, Board decision
is SET ASIDE, and the matter is remanded for readjudication consistent with this decision.
DATED: October 21, 2014
19

Copies to:
Sean A. Ravin, Esq.
VA General Counsel (027)
20

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