Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7325
DON R. KALASHIAN, APPELLANT,
V.
DAT P. TRAN,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Don R. Kalashian appeals through counsel an August
23, 2019, Board of Veterans’ Appeals (Board) decision denying an effective date earlier than April
24, 2014, for the award of service connection for post-traumatic stress disorder (PTSD). Record
(R.) at 5-12.1 For the reasons that follow, the Court will set aside the appealed portion of the
August 2019 Board decision and remand that matter for further development, if necessary, and
readjudication consistent with this decision.
I. FACTS
Mr. Kalashian served on active duty in the U.S. Navy from March 1973 through October
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7325
DON R. KALASHIAN, APPELLANT,
V.
DAT P. TRAN,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Don R. Kalashian appeals through counsel an August
23, 2019, Board of Veterans’ Appeals (Board) decision denying an effective date earlier than April
24, 2014, for the award of service connection for post-traumatic stress disorder (PTSD). Record
(R.) at 5-12.1 For the reasons that follow, the Court will set aside the appealed portion of the
August 2019 Board decision and remand that matter for further development, if necessary, and
readjudication consistent with this decision.
I. FACTS
Mr. Kalashian served on active duty in the U.S. Navy from March 1973 through October 1974. R. at 6229.R. at 6229.
From August 1981 through February 1982, Mr. Kalashian was admitted to a VA hospital
for psychiatric reasons and was diagnosed with borderline personality disorder at discharge. R. at
1 In the same decision, the Board remanded the issues of entitlement to increased evaluation for PTSD and
total disability based on individual unemployability (TDIU). R. at 10-12. Because a remand is not a final decision of
the Board subject to judicial review, the Court does not have jurisdiction to consider that matter at this time. See
Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam
order); 38 C.F.R. § 20.1100(b) (2020).
2
6514, 6559. While admitted, he filed a claim for service connection for depressive neurosis and
hepatitis, R. at 6494, but VA could not locate his service treatment records (STRs) and denied the
claims in March 1982, R. at 6523.
In March 1999, Mr. Kalashian requested that VA reopen his claim for a mental health
condition. R. at 6252. Two months later, the VA regional office (RO) requested his service
personnel records (SPRs) from the National Personnel Records Center (NPRC) and a Personnel
Information Exchange System (PIES) response contains a “receipt date” of July 13, 1999. R. at
However, the same response is date stamped by the RO as received in November 1999. Id.
In the meantime, the RO in July 1999 requested copies of his STRs, R. at 5984, and received only
his report of medical history at entrance, R. at 6080. As a result, in September 1999, the RO found
that he had not submitted new and material evidence sufficient to reopen the claim, R. at 6235-36.
The RO did not take any further action on his claim upon apparent receipt of his SPRs in November
1999.
In April 2014, Mr. Kalashian again requested reopening of his claim for service connection
for depression and PTSD, R. at 6230, filing a July 2014 stressor statement, R. at 6111. The RO
requested the STRs once again in December 2014, but the NPRC provided a negative response.
R. at 5964. Consequently, in August 2015, the RO denied service connection for PTSD and found
no new and material evidence had been submitted sufficient to reopen his claim for depressive
neurosis. R. at 3002-06. Mr. Kalashian subsequently submitted additional information regarding
his stressor and PTSD diagnosis, R. at 2955-64, and the RO continued the denial of service
connection in February 2016, R. at 2916-18. In May 2016, Mr. Kalashian submitted deck logs
verifying his claimed in-service stressor, R. at 2301, and the RO ordered a VA examination, R. at
458-75. In an April 2017 rating decision, the RO awarded service connection for PTSD and
assigned a 50% initial evaluation effective April 24, 2014. R. at 195-97.
In May 2017, Mr. Kalashian appealed the effective date and evaluation assigned for PTSD,
arguing for an effective date based on his original claim due to the receipt of newly submitted
service records pursuant to 38 C.F.R. § 3.156(c). R. at 139. He did not appeal the RO’s denial of
service connection for depressive neurosis. Id. The RO responded with an April 2018 Statement
of the Case (SOC), R. at 67-89, and Mr. Kalashian perfected his appeal, R. at 64. In a June 2019
statement, Mr. Kalashian specified that the newly received service records referenced in his Notice
of Disagreement were the deck logs he submitted in May 2016. R. at 20.
3
In the August 2019 decision on appeal, the Board found that VA could not have obtained
those deck logs previously because Mr. Kalashian had not provided sufficient information for VA
to identify and obtain them. R. at 6-7, 9-10. The Board also found the March 1982 and September
1999 rating decisions final. R.at 8. The Board considered Mr. Kalashian’s July 2014 statement to
be the first time he identified a specific stressor. R. at 8-10. The Board concluded that the deck
logs could not have been identified or obtained prior to Mr. Kalashian’s April 2014 claim and, on
that basis, denied a PTSD effective date earlier than April 24, 2014. R. at 10. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Kalashian’s appeal is timely and the Court has jurisdiction to review the August 2019
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determination of the effective date for a service-connected disability is a
finding of fact that the Court reviews under the “clearly erroneous” standard set forth in 38 U.S.C.
§ 7261(a)(4). See Evans v. West, 12 Vet.App. 396, 401 (1999); Hanson v. Brown, 9 Vet.App. 29,
32 (1996). “A factual finding ‘is “clearly erroneous” when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 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 it finds persuasive or unpersuasive, and provide reasons for rejecting material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
III. ANALYSIS
Mr. Kalashian argues, among other things, that the Board erred in finding that the
September 1999 rating decision was final despite VA’s receipt of his SPRs in November 1999, in
violation of 38 C.F.R. § 3.156(b). Appellant’s Brief (Br.) at 20-23. He additionally argues that the
Board erred in not reconsidering his original 1981 claim based on VA’s receipt of the deck logs
4
pursuant to § 3.156(c). Id. at 14-17. The Secretary asserts that the Court should not consider Mr.
Kalashian’s § 3.156(b) argument because he failed to raise it below, despite being represented by
his current counsel. Secretary’s Br. at 13-14. The Secretary alternatively argues that, if the Court
were to consider that argument, the veteran has failed to carry his burden of demonstrating
prejudicial error because it is not clear from the record whether VA received the SPRs in July 1999
or November 1999, or that the SPRs are relevant to Mr. Kalashian’s PTSD claim. Id. at 16-18.
The Secretary additionally argues that Mr. Kalashian failed to provide the information necessary
to obtain the deck logs until he submitted the July 2014 stressor statement and, therefore, that VA’s
failure to obtain those logs before that date did not constitute administrative error of the type that
§ 3.156(c) is intended to remedy. Id. at 9.
With respect to the Secretary’s argument that the Court not consider Mr. Kalashian’s
§ 3.156(b) argument, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in
Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000), that, because exhaustion of administrative
remedies is not a jurisdictional requirement in the veterans benefits system, this Court has
discretion to hear arguments raised before it in the first instance, provided it otherwise has
jurisdiction over the claim. See, e.g., Massie v. Shinseki, 25 Vet.App. 123, 126-28 (2011), aff’d on
other grounds, 724 F.3d 1325 (Fed. Cir. 2013); see also Carter v. Shinseki, 26 Vet.App. 534, 540-
41 (2014). That is the case here. The record shows that VA submitted a request for Mr.
Kalashian’s SPRs to NPRC in May 1999 and the documents were “mailed” with PIES “receipt
date” in July 1999, prior to the September 1999 rating decision, but also date-stamped as “received”
by the RO in November 1999, after the September 1999 rating decision. R. at 6131. Due to this
record discrepancy, the Board did not address, the record itself raised the § 3.156(b) theory of
entitlement to the Board, and therefore the Court will address appellant’s § 3.156(b) argument.
For claims decided prior to February 19, 2019,2 the effective date of an award of VA
disability compensation based on an original claim or a request to reopen a claim generally is the
2 Effective February 19, 2019, VA amended § 3.400 to comply with the widespread appeals processing
changes mandated by the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), Pub. L. No. 115-
55141 Stat. 1105 (Aug. 23, 2017). See VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (final rule) (Jan. 18,
2019); VA Claims and Appeals Modernization, 84 Fed. Reg. 2449 (notification of effective date) (Feb. 7, 2019). The
amended regulation removed a prefatory reference to “a claim reopened after final disallowance” because, effective
February 19, 2019, claimants may no longer file to reopen a finally decided claim, but instead may file a supplemental
claim. 38 C.F.R. § 3.160 (2020); see 38 C.F.R. § 3.2501 (2020). However, subsection (r), which governs effective
dates based on reopened claims, remain in the post-AMA regulation as these provisions apply to legacy claims,
including, as relevant, those applications for benefits following the final disallowance of an earlier claim that was
received by VA prior to February 19, 2019, like Mr. Kalashian’s petition to reopen the claim for service connection
5
date of receipt of the claim or request or the date entitlement arose, whichever is later. 38 U.S.C.
§ 5110(a); 38 C.F.R. § 3.400(b)(2)(i) (2020); see Sutton v. Nicholson, 20 Vet.App. 419, 422 (2006).
Subject to certain exceptions, when VA properly notifies a claimant as to its decision on a claim,
that decision becomes final if an appeal is not lodged. 38 C.F.R. § 20.1103 (2020); see 38 U.S.C.
§ 7105(c); see also Sutton, 20 Vet.App. at 425 (“In general, if a claim is denied by an RO, and the
claimant does not file an NOD within one year, then [the] RO decision becomes final and
unappealable by operation of law.”).
However, VA regulations specify that, when new and material evidence is received within
an appeal period or prior to an appellate decision, “[t]he effective date will be as though the former
decision had not been rendered.” 38 C.F.R. § 3.400(q). A related provision further explains this
rule: “Pending claim.—New and material evidence received prior to the expiration of the appeal
period . . . will be considered as having been filed in connection with the claim which was pending
at the beginning of the appeal period.” 38 C.F.R. § 3.156(b) (2019). In Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found that § 3.156(b) requires VA to assess any evidence submitted during the relevant appeal period, even if no appeal is filed, and determine whether it constitutes new and material evidence relating to the claim. If VA does not provide such an assessment, the claim remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) (finding that if VA does not assess whether evidence submitted during the appeal period is new and material pursuant to § 3.156(b), the claim
remains pending). In Mitchell v. McDonald, 27 Vet.App. 431, 440 (2015), this Court reversed the
Board’s determination that an RO decision was final and remanded the veteran’s claim for the
Board to make a threshold finding as to whether evidence submitted during the appeal period was
new and material and to then assign an appropriate effective date.
The Court agrees with Mr. Kalashian that the Board provided inadequate reasons or bases
for determining that the September 1999 rating decision was final without addressing VA’s receipt
of the SPRs in 1999. Here the Board found the September 1999 rating decision final because Mr.
Kalashian did not file a Notice of Disagreement (NOD) within one year of that decision. R. at 8-
9; see Caluza, 7 Vet.App. at 506. But § 3.156(b) requires only that, during the appeal period, new
and material evidence relevant to the denied and unappealed claim be received; whether Mr.
for PTSD. See 38 C.F.R. § 3.2400(b) (2020); 38 C.F.R. § 19.2(c) (2020).
6
Kalashian filed an NOD is not determinative, and the Board erred in treating it as such. The Board
also erred in not making a factual finding as to when the SPRs were received by VA and, if they
were received in November 1999 as opposed to July 1999, whether those records were relevant to
the mental health claim denied in September 1999. The Board’s failure to do so rendered
inadequate its reasons or bases for finding that the September 1999 decision was final because,
“under § 3.156(b), VA must provide a determination that is directly responsive to the new
submission and, until it does so, the claim at issue remains open.” Beraud, 766 F.3d at 1407.
Although Mr. Kalashian argues for reversal rather than remand because the Court reviews
the Board’s finding whether a decision is final de novo, Appellant’s Br. at 12, 23-25, remand, not
reversal, is the appropriate remedy where, as here, the Board has provided inadequate reasons or
bases for its decision and additional fact-finding and weighing of the evidence are necessary to
make a decision on a claim. See Deloach v. Shinseki, 704 F.3d 1370, 1381 (Fed. Cir. 2013); Tucker
v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the
Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”). As noted above, the Board
has not determined whether the veteran’s SPRs were received within the appeal period of the
September 1999 rating decision or whether they were relevant to his claims for service connection
for mental health conditions as required by § 3.156(b). See Byron v. Shinseki, 670 F.3d 1202,
1205–06 (Fed. Cir. 2012) (holding that, in general, the Court should not make factual findings and
weigh evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that, the
Board, as factfinder, is responsible for assessing the credibility, competence, and probative value
of evidence).
Given this disposition, it is premature to address Mr. Kalashian’s additional argument
regarding application of § 3.156(c). The veteran is free on remand to submit additional evidence
and argument, including the arguments raised in his briefs to this Court pursuant to 3.156(c), 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 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, 1
Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with
38 U.S.C. § 7112.
7
IV. CONCLUSION
Upon consideration of the foregoing, the August 23, 2019, Board decision denying an
effective date prior to April 24, 2014, for the award of service connection for PTSD is SET ASIDE
and this matter is REMANDED for further development, if necessary, and readjudication
consistent with this decision.
DATED: January 29, 2021
Copies to:
Amy B. Kretkowski, Esq.
VA General Counsel (027)
- R. at 6229.
From August 1981 through February 1982, Mr. Kalashian was admitted to a VA hospital
for psychiatric reasons and was diagnosed with borderline personality disorder at discharge. R. at
1 In the same decision, the Board remanded the issues of entitlement to increased evaluation for PTSD and
total disability based on individual unemployability (TDIU). R. at 10-12. Because a remand is not a final decision of
the Board subject to judicial review, the Court does not have jurisdiction to consider that matter at this time. See
Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam
order); 38 C.F.R. § 20.1100(b) (2020).
2
6514, 6559. While admitted, he filed a claim for service connection for depressive neurosis and
hepatitis, R. at 6494, but VA could not locate his service treatment records (STRs) and denied the
claims in March 1982, R. at 6523.
In March 1999, Mr. Kalashian requested that VA reopen his claim for a mental health
condition. R. at 6252. Two months later, the VA regional office (RO) requested his service
personnel records (SPRs) from the National Personnel Records Center (NPRC) and a Personnel
Information Exchange System (PIES) response contains a “receipt date” of July 13, 1999. R. at - However, the same response is date stamped by the RO as received in November 1999. Id.
In the meantime, the RO in July 1999 requested copies of his STRs, R. at 5984, and received only
his report of medical history at entrance, R. at 6080. As a result, in September 1999, the RO found
that he had not submitted new and material evidence sufficient to reopen the claim, R. at 6235-36.
The RO did not take any further action on his claim upon apparent receipt of his SPRs in November
1999.
In April 2014, Mr. Kalashian again requested reopening of his claim for service connection
for depression and PTSD, R. at 6230, filing a July 2014 stressor statement, R. at 6111. The RO
requested the STRs once again in December 2014, but the NPRC provided a negative response.
R. at 5964. Consequently, in August 2015, the RO denied service connection for PTSD and found
no new and material evidence had been submitted sufficient to reopen his claim for depressive
neurosis. R. at 3002-06. Mr. Kalashian subsequently submitted additional information regarding
his stressor and PTSD diagnosis, R. at 2955-64, and the RO continued the denial of service
connection in February 2016, R. at 2916-18. In May 2016, Mr. Kalashian submitted deck logs
verifying his claimed in-service stressor, R. at 2301, and the RO ordered a VA examination, R. at
458-75. In an April 2017 rating decision, the RO awarded service connection for PTSD and
assigned a 50% initial evaluation effective April 24, 2014. R. at 195-97.
In May 2017, Mr. Kalashian appealed the effective date and evaluation assigned for PTSD,
arguing for an effective date based on his original claim due to the receipt of newly submitted
service records pursuant to 38 C.F.R. § 3.156(c). R. at 139. He did not appeal the RO’s denial of
service connection for depressive neurosis. Id. The RO responded with an April 2018 Statement
of the Case (SOC), R. at 67-89, and Mr. Kalashian perfected his appeal, R. at 64. In a June 2019
statement, Mr. Kalashian specified that the newly received service records referenced in his Notice
of Disagreement were the deck logs he submitted in May 2016. R. at 20.
3
In the August 2019 decision on appeal, the Board found that VA could not have obtained
those deck logs previously because Mr. Kalashian had not provided sufficient information for VA
to identify and obtain them. R. at 6-7, 9-10. The Board also found the March 1982 and September
1999 rating decisions final. R.at 8. The Board considered Mr. Kalashian’s July 2014 statement to
be the first time he identified a specific stressor. R. at 8-10. The Board concluded that the deck
logs could not have been identified or obtained prior to Mr. Kalashian’s April 2014 claim and, on
that basis, denied a PTSD effective date earlier than April 24, 2014. R. at 10. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Kalashian’s appeal is timely and the Court has jurisdiction to review the August 2019
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determination of the effective date for a service-connected disability is a
finding of fact that the Court reviews under the “clearly erroneous” standard set forth in 38 U.S.C.
§ 7261(a)(4). See Evans v. West, 12 Vet.App. 396, 401 (1999); Hanson v. Brown, 9 Vet.App. 29,
32 (1996). “A factual finding ‘is “clearly erroneous” when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 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 it finds persuasive or unpersuasive, and provide reasons for rejecting material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
III. ANALYSIS
Mr. Kalashian argues, among other things, that the Board erred in finding that the
September 1999 rating decision was final despite VA’s receipt of his SPRs in November 1999, in
violation of 38 C.F.R. § 3.156(b). Appellant’s Brief (Br.) at 20-23. He additionally argues that the
Board erred in not reconsidering his original 1981 claim based on VA’s receipt of the deck logs
4
pursuant to § 3.156(c). Id. at 14-17. The Secretary asserts that the Court should not consider Mr.
Kalashian’s § 3.156(b) argument because he failed to raise it below, despite being represented by
his current counsel. Secretary’s Br. at 13-14. The Secretary alternatively argues that, if the Court
were to consider that argument, the veteran has failed to carry his burden of demonstrating
prejudicial error because it is not clear from the record whether VA received the SPRs in July 1999
or November 1999, or that the SPRs are relevant to Mr. Kalashian’s PTSD claim. Id. at 16-18.
The Secretary additionally argues that Mr. Kalashian failed to provide the information necessary
to obtain the deck logs until he submitted the July 2014 stressor statement and, therefore, that VA’s
failure to obtain those logs before that date did not constitute administrative error of the type that
§ 3.156(c) is intended to remedy. Id. at 9.
With respect to the Secretary’s argument that the Court not consider Mr. Kalashian’s
§ 3.156(b) argument, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in
Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000), that, because exhaustion of administrative
remedies is not a jurisdictional requirement in the veterans benefits system, this Court has
discretion to hear arguments raised before it in the first instance, provided it otherwise has
jurisdiction over the claim. See, e.g., Massie v. Shinseki, 25 Vet.App. 123, 126-28 (2011), aff’d on
other grounds, 724 F.3d 1325 (Fed. Cir. 2013); see also Carter v. Shinseki, 26 Vet.App. 534, 540-
41 (2014). That is the case here. The record shows that VA submitted a request for Mr.
Kalashian’s SPRs to NPRC in May 1999 and the documents were “mailed” with PIES “receipt
date” in July 1999, prior to the September 1999 rating decision, but also date-stamped as “received”
by the RO in November 1999, after the September 1999 rating decision. R. at 6131. Due to this
record discrepancy, the Board did not address, the record itself raised the § 3.156(b) theory of
entitlement to the Board, and therefore the Court will address appellant’s § 3.156(b) argument.
For claims decided prior to February 19, 2019,2 the effective date of an award of VA
disability compensation based on an original claim or a request to reopen a claim generally is the
2 Effective February 19, 2019, VA amended § 3.400 to comply with the widespread appeals processing
changes mandated by the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), Pub. L. No. 115-
55141 Stat. 1105 (Aug. 23, 2017). See VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (final rule) (Jan. 18,
2019); VA Claims and Appeals Modernization, 84 Fed. Reg. 2449 (notification of effective date) (Feb. 7, 2019). The
amended regulation removed a prefatory reference to “a claim reopened after final disallowance” because, effective
February 19, 2019, claimants may no longer file to reopen a finally decided claim, but instead may file a supplemental
claim. 38 C.F.R. § 3.160 (2020); see 38 C.F.R. § 3.2501 (2020). However, subsection (r), which governs effective
dates based on reopened claims, remain in the post-AMA regulation as these provisions apply to legacy claims,
including, as relevant, those applications for benefits following the final disallowance of an earlier claim that was
received by VA prior to February 19, 2019, like Mr. Kalashian’s petition to reopen the claim for service connection
5
date of receipt of the claim or request or the date entitlement arose, whichever is later. 38 U.S.C.
§ 5110(a); 38 C.F.R. § 3.400(b)(2)(i) (2020); see Sutton v. Nicholson, 20 Vet.App. 419, 422 (2006).
Subject to certain exceptions, when VA properly notifies a claimant as to its decision on a claim,
that decision becomes final if an appeal is not lodged. 38 C.F.R. § 20.1103 (2020); see 38 U.S.C.
§ 7105(c); see also Sutton, 20 Vet.App. at 425 (“In general, if a claim is denied by an RO, and the
claimant does not file an NOD within one year, then [the] RO decision becomes final and
unappealable by operation of law.”).
However, VA regulations specify that, when new and material evidence is received within
an appeal period or prior to an appellate decision, “[t]he effective date will be as though the former
decision had not been rendered.” 38 C.F.R. § 3.400(q). A related provision further explains this
rule: “Pending claim.—New and material evidence received prior to the expiration of the appeal
period . . . will be considered as having been filed in connection with the claim which was pending
at the beginning of the appeal period.” 38 C.F.R. § 3.156(b) (2019). In Bond v. Shinseki, 659 F.3d
1362 (Fed. Cir. 2011), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found
that § 3.156(b) requires VA to assess any evidence submitted during the relevant appeal period,
even if no appeal is filed, and determine whether it constitutes new and material evidence relating
to the claim. If VA does not provide such an assessment, the claim remains pending. See Beraud
v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) (finding that if VA does not assess whether
evidence submitted during the appeal period is new and material pursuant to § 3.156(b), the claim
remains pending). In Mitchell v. McDonald, 27 Vet.App. 431, 440 (2015), this Court reversed the
Board’s determination that an RO decision was final and remanded the veteran’s claim for the
Board to make a threshold finding as to whether evidence submitted during the appeal period was
new and material and to then assign an appropriate effective date.
The Court agrees with Mr. Kalashian that the Board provided inadequate reasons or bases
for determining that the September 1999 rating decision was final without addressing VA’s receipt
of the SPRs in 1999. Here the Board found the September 1999 rating decision final because Mr.
Kalashian did not file a Notice of Disagreement (NOD) within one year of that decision. R. at 8-
9; see Caluza, 7 Vet.App. at 506. But § 3.156(b) requires only that, during the appeal period, new
and material evidence relevant to the denied and unappealed claim be received; whether Mr.
for PTSD. See 38 C.F.R. § 3.2400(b) (2020); 38 C.F.R. § 19.2(c) (2020).
6
Kalashian filed an NOD is not determinative, and the Board erred in treating it as such. The Board
also erred in not making a factual finding as to when the SPRs were received by VA and, if they
were received in November 1999 as opposed to July 1999, whether those records were relevant to
the mental health claim denied in September 1999. The Board’s failure to do so rendered
inadequate its reasons or bases for finding that the September 1999 decision was final because,
“under § 3.156(b), VA must provide a determination that is directly responsive to the new
submission and, until it does so, the claim at issue remains open.” Beraud, 766 F.3d at 1407.
Although Mr. Kalashian argues for reversal rather than remand because the Court reviews
the Board’s finding whether a decision is final de novo, Appellant’s Br. at 12, 23-25, remand, not
reversal, is the appropriate remedy where, as here, the Board has provided inadequate reasons or
bases for its decision and additional fact-finding and weighing of the evidence are necessary to
make a decision on a claim. See Deloach v. Shinseki, 704 F.3d 1370, 1381 (Fed. Cir. 2013); Tucker
v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the
Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”). As noted above, the Board
has not determined whether the veteran’s SPRs were received within the appeal period of the
September 1999 rating decision or whether they were relevant to his claims for service connection
for mental health conditions as required by § 3.156(b). See Byron v. Shinseki, 670 F.3d 1202,
1205–06 (Fed. Cir. 2012) (holding that, in general, the Court should not make factual findings and
weigh evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that, the
Board, as factfinder, is responsible for assessing the credibility, competence, and probative value
of evidence).
Given this disposition, it is premature to address Mr. Kalashian’s additional argument
regarding application of § 3.156(c). The veteran is free on remand to submit additional evidence
and argument, including the arguments raised in his briefs to this Court pursuant to 3.156(c), 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 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, 1
Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with
38 U.S.C. § 7112.
7
IV. CONCLUSION
Upon consideration of the foregoing, the August 23, 2019, Board decision denying an
effective date prior to April 24, 2014, for the award of service connection for PTSD is SET ASIDE
and this matter is REMANDED for further development, if necessary, and readjudication
consistent with this decision.
DATED: January 29, 2021
Copies to:
Amy B. Kretkowski, Esq.
VA General Counsel (027)
Veteranclaims's Blog 
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