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allan
. 05-3246
Vigil 05-3246 Final.wpd
Search Terms: VIGIL PEAKE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 05-3246
Fred J. Vigil, Appellant,
v.
James B. Peake, M.D.,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Argued October 25, 2007 Decided
February 12, 2008
)
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Nathan Paul Kirschner, with whom Paul J. Hutter, Acting General
Counsel; R. Randall Campbell, Assistant General Counsel; and Brian B.
Rippel, Deputy Assistant General Counsel, were on the brief, all of
Washington D.C., for the appellee.
Before KASOLD, LANCE, and SCHOELEN, Judges.
KASOLD, Judge, filed the opinion of the Court. LANCE, Judge, filed a
dissenting opinion.
KASOLD, Judge: Veteran Fred J. Vigil appeals through counsel an
August 2, 2005, Board of Veterans' Appeals (Board) decision that denied
entitlement to an effective date earlier than January 25, 1989, for an
award of service connection for post-traumatic stress disorder (PTSD). Mr. Vigil argues that the Board erred in its determination that 38 C.F.R.
3.156© (2005), regarding effective date of awards, was not applicable in
his case. For the reasons stated below, we will set aside the Board
decision and remand this matter for further adjudication.
I. BACKGROUND
In December 1980, Mr. Vigil filed a claim for PTSD that was
ultimately denied because a Department of Veterans Affairs (VA)
examination determined that he did not have a PTSD diagnosis. See Record (
R.) at 6. Mr. Vigil filed a Notice of Disagreement to this decision and
the
Secretary issued a Statement of the Case, however, Mr. Vigil did
not pursue this appeal further and the regional office (RO) decision
became final.
On January 25, 1989, Mr. Vigil submitted another application for
compensation for PTSD. R. at 75-76. VA informed Mr. Vigil that, because
his claim had previously been denied, he needed to submit new and material
evidence to have the claim reconsidered. R. at 81. In 1991, Mr. Vigil
submitted a private medical opinion by Dr. Don Cole that established a
PTSD diagnosis. While Mr. Vigil's claim was pending, the U.S. Armed
Services Center for Research of Unit Records (hereinafter USASCRUR or CRUR)
provided unit records to the RO describing an explosion at an ammunition
dump that Mr. Vigil previously described as one of his stressors.[
1 The USASCRUR is now known as the Army & Joint Services Records
Research Center or the JSRRC. Jennings v. Nicholson, No. 06-0758, 2007 WL
2429834, at *2 (Vet. App. Aug. 10, 2007). ]1 After a series of
remands, the RO, in 2001, awarded service connection for PTSD rated 100%
disabling from January 25, 1989, the date of his claim to reopen.
Mr. Vigil challenged this decision arguing that upon receipt of the
USASCRUR records his initial claim should have been reconsidered pursuant
to 38 C.F.R. 3.156© to determine if he was entitled to an effective
date earlier than January 25, 1989, the date on which he filed to reopen
his PTSD claim. In the decision on appeal, the Board determined that 3.
156© did not apply because (1) the USASCRUR records received by the RO
had not been misplaced or erroneously omitted from the initial
determination and therefore were not the type of record contemplated by
the regulation, and (2) there was no diagnosis of PTSD in the record at
the time of the original decision denying his claim. Having determined
that 3.156© was not for application, the Board declined, pursuant to
38 C.F.R. 3.400(q)(1)(ii) (2005), to set Mr. Vigil's effective date for
service-connected PTSD at a date earlier than the date of his claim to
reopen.
During the pendency of this appeal, the Secretary revised 3.156©
with a stated purpose of, inter alia, clarifying the regulation to reflect
current practices. See 38 C.F.R. 3.156© (2007); see also New and
Material Evidence, 70 Fed. Reg. 35,388 (proposed June, 20, 2005) (codified
at 38 C.F.R. pt. 3). At oral argument, the Secretary agreed that his
clarifying statements in the proposed rule should govern the
interpretation of the pre-amended 3.156© wherever relevant in this
case. Mr. Vigil also generally agreed that the clarifying statements
governed here. Although
the parties agree that the Secretary's interpretation is reasonable and
applicable in this case, they differ on whether this interpretation
requires a claimant to be provided a retroactive medical examination, with
Mr. Vigil arguing he is so entitled and the Secretary arguing to the
contrary. Inasmuch as the parties agree that the Secretary's clarifying
statements generally apply in this case, and because we see no reason that
they should not, see Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006) ("We
review the interpretation of regulations de novo."); see also 38 U.S.C.
7261(a)(1); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.
S. 837, 844 (1984) (Court must defer to the agency's interpretation of the
statute unless it is "arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with the law"), we will review the Board
decision in light of these clarifying statements.
II. DISCUSSION
Three aspects of the Secretary's clarifying statement with regard to
the scope of 3.156© are relevant here: (A) Applicability of 3.156©
did not depend on whether the newly acquired service records were
corrected records or had been misplaced at the time a claim was filed, (B
) 3.156© authorizes an effective date as early as the date of the
original claim up to the date of the claim to reopen, and © application
of 3.156© requires a retroactive evaluation of disability.
A. 38 C.F.R. 3.156© - Misplaced or Corrected Records
The Board determined that 38 C.F.R. 3.156© was not applicable to
Mr. Vigil's claim because the regulation comprehended official service
department records that have been misplaced or corrected. However, the
Secretary's clarifying statement explicitly states that "in practice, VA
does not limit its reconsideration to 'misplaced' service department
records." See New and Material Evidence, 70 Fed. Reg. at 35,388. The
clarifying statement further notes that the reference to misplaced records
in the regulation was intended to be an example of the types of records
that might allow a claimant to obtain an effective date prior to the date
of reopening under 3.156©, and was not limited solely to misplaced
records. Accordingly, the Board erred in rejecting the application of 3.
156© on this basis.
Moreover, to the extent the Board rejected the application of 3.156(
c) on the basis that USASCRUR records are not the type of records
contemplated by the regulation because they were
"generated on behalf of an active and pending claim" (R. at 10), the
Secretary explicitly cited CRUR records as an example of the type of
records that are to be considered, as long as the claimant provides "
sufficient information for VA to identify and obtain the records." See
New and Material Evidence, 70 Fed. Reg. at 35,390. In this instance,
USASCRUR records were obtained and used to verify Mr. Vigil's stressors
.[ 2 Although not an issue in this case, we note that the
Secretary's clarifying statement makes it clear that an earlier effective
date may be assigned under 3.156© when an award is based "all or in
part" on the newly obtained service records. See New and Material
Evidence, 70 Fed. Reg. at 35,389.]2 See R. at 7-8, 326-27.
Accordingly, the Board erred in rejecting the application of 3.156©
simply because these records had not been misplaced or because they were
generated by USASCRUR upon the Secretary's request, and remand is
warranted so that the Board may consider the Secretary's clarifying
statement when assessing the applicability of this regulation in this case
.[ 3 Contrary to the view of our dissenting colleague, we
are not holding that 3.156© warrants an earlier effective date in this
case or all cases that are denied for a lack of diagnosis and later
reopened and granted, in part, on service records not obtained previously,
or that 3.156© necessarily is for application here. Rather, we are
holding that the Board's decision that 3.156© does not apply to Mr.
Vigil's claim rests on a faulty premise.]3 See Tucker v. West, 11
Vet.App. 369, 374 (1998) ("[W]here 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, a remand is
the appropriate remedy.").
B. 38 C.F.R. 3.156© - Effective Date
As the Secretary states in his clarifying statement, "'[a]n award
based all or in part on the records identified by . . . this section is
effective on the date entitlement arose or the date VA received the
previously decided claim.'" New and Material Evidence, 70 Fed. Reg. at 35,
389 (quoting the proposed 3.156©). Moreover, by way of specific
example, the Secretary notes that when an initial claim is denied because
of a lack of evidence of an in-service injury, but is later granted based
in part on subsequently acquired service records establishing the in-
service injury and new medical evidence showing a nexus between a current
disability and that in-service injury, the claimant is entitled to a
retroactive evaluation of the disability to assess a proper effective date
which would be the date of the original claim or the date entitlement
otherwise arose, whichever is later. Id. In this sense, 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 may be granted. See id.
Thus, depending on the facts, Mr. Vigil could be assigned an
effective date as far back as his original claim or the date on which
entitlement arose, whichever is later, if 3.156© ultimately is deemed
to be applicable in this case. For this reason, the Secretary's argument
that the Board decision should be affirmed because there is a plausible
basis for its factual finding that Mr. Vigil was not diagnosed with PTSD
prior to 1989 is inapposite. Although the Board found that the Secretary
had fulfilled his duty to assist and that no further medical examination
was warranted, this finding was predicated, at least in part, on the
Board's conclusion that 3.156© was not for application in this case on
the improper grounds that certain records had not been misplaced
previously or were obtained from USASCRUR upon request. See R. at 4 ("A
medical examination is not relevant to the pending appeal, and as such, VA
fulfilled its duties to the veteran to the extent possible given the
particular circumstances of this case."). If 3.156© ultimately is
deemed applicable, the duty to assist would require not only the
development of evidence regarding the degree of disability associated with
Mr. Vigil's PTSD, but also the development of evidence regarding when Mr. Vigil 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);
Forcier v. Nicholson, 19 Vet.App. 414, 421-22 (2006); 38 C.F.R. 3.159© (
2005).
C. Retroactive Evaluation of Disability
Because the Board determined that 3.156© was inapplicable to Mr.
Vigil's claim, it did not address whether a retroactive medical
examination was required, or otherwise necessary to fulfill the duty to
assist. Moreover, the issue of the scope of the Secretary's obligation
with respect to a retroactive evaluation was raised for the first time at
oral argument, and, particularly in light of the fact that remand is
otherwise warranted, this issue can be addressed in the first instance on
remand. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (
holding that the Court has discretion to hear or to remand legal arguments
raised for the first time on appeal).
III. REMAND
On remand, Mr. Vigil may present any additional evidence and argument
in support of his contention that he is entitled to an effective date
prior to the date his claim was reopened and the
Board must consider any evidence and argument so presented. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided
expeditious treatment on remand. See 38 U.S.C. 7112.
IV. CONCLUSION
The August 2, 2005, decision of the Board is SET ASIDE and REMANDED
for adjudication consistent with this opinion.
LANCE, Judge, dissenting: The essence of the majority opinion rests
on the premise that service records not requested by VA may be considered
unavailable for that reason, and may be the type of records subject to the
exception provided in 38 C.F.R. 3.156©. However, for the purposes of
3.156©, I believe that unavailable service records are those that VA had
a duty to seek and, for whatever reason, was not able to obtain. As I
believe 3.156© is not applicable in this case, I must respectfully
dissent. The Secretary's 2005 proposed rule change statement clarified
that the exception in 3.156© allows for the reconsideration of
decisions on the basis of newly discovered service department records.
The Secretary explained that the purpose of this section is to ensure that
the claimant is not harmed by "administrative deficiency of the government
." See New and Material Evidence, 70 Fed. Reg. at 35,388. The
Secretary further explained that the rule applies "when VA receives
official service department records that were unavailable at the time VA
previously decided a claim for benefits and those records lead VA [at
least in part] to award a benefit that was not granted in the previous
decision." Id. (emphasis added). The Secretary's clarification also
recognized that in practice VA "does not limit its reconsideration to
'misplaced' service department records", but rather, VA intended the
reference to misplaced records as an example of the type of service
department records that may have been unavailable when it issued a
decision on the claim. Id.
In assembling records relevant to a veteran's claim, VA has a duty to
assist claimants in obtaining government or private records that are "
pertinent and specific to the claim." White v. Derwinski, 1 Vet.App. 519,
521 (1991) (citing 38 C.F.R. 3.159(b)). However, VA has no duty to
develop evidence supporting a claim when there is no reasonable
possibility that assistance by VA will aid in substantiating the claim.
38 C.F.R. 3.159(d); See Forcier v. Nicholson, 19 Vet.App. 414,
423 (2003) (VA must assist in developing evidence that supports the
existence of stressors unless there is no reasonable possibility that
assistance will substantiate the claim). In this case, the service
records at issue were not requested by VA when VA first adjudicated the
appellant's claim in 1982. VA had no duty to seek out records
corroborating the appellant's PTSD stressors at that time because his
examining physician reported that he did not meet the diagnostic criteria
for PTSD. R. at 59. Hence, corroboration of the appellant's stressors
through USASCRUR records would not have substantiated his claim for PTSD
absent a diagnosis. In 1997, after the appellant requested to have his
PTSD claim reopened and a diagnosis of PTSD was received, VA sought to
corroborate the appellant's stressors by obtaining USASCRUR records, which
the USASCRUR duly furnished. There is no support in the record, nor any
allegation, that these USASCRUR records were ever unavailable for any
reason. Further, VA's process was not deficient because it did not seek
evidence in 1982 that it had no duty to obtain, and that, ultimately,
would not have aided the appellant in substantiating his claim. As such,
3.156© is simply inapplicable to the appellant's claim.
Moreover, not only does the majority's interpretation of 3.156©
ignore the Secretary's stated purpose in promulgating the regulation, it
results in a circumvention of the statutorily mandated effective date
provided by 38 U.S.C. 5110(a). Pursuant to the statute, the effective
date of an award based on a claim reopened after final adjudication "shall
not be earlier than the date of receipt of application therefor." 38 U.
S.C. 5110(a). However, under the majority's application of 3.
156©, every PTSD claim finally denied solely because of a lack of a
diagnosis and is later reopened on the basis of a current diagnosis is
entitled to an effective date potentially relating back to the originally
denied claim. This is so because, upon evidence of a PTSD diagnosis, VA
must proceed for the first time to attempt to corroborate the in-service
PTSD stressors with unit or service records. If corroborating records
are recovered, the majority interprets this to trigger the application of
3.156©. Applied in this manner, 3.156© performs an unanticipated
end-run around section 5110(a) by permitting assignment of an earlier
effective date for reopened claims even in the absence of any governmental
deficiencies and unavailable records.
Finally, the reason I find 3.156© inapplicable is not because the
USASCRUR records in this case were not relevant to the reopening of the
appellant's claim. As noted by the Court at oral argument, the
Secretary's clarifying comments in the Federal Register proposed to remove
the "new
and material" requirement of 3.156© because, in practice, the
relevance of previously unavailable service records to the reopening of a
claim does not affect whether VA applies 3.156©. See New and Material
Evidence, 70 Fed. Reg. at 35,388. Rather, 3.156© does not apply
because the USASCRUR records in this case were never unavailable.
Accordingly, the Board correctly determined that 38 C.F.R. 3.400(q)(1)(
ii) was the relevant and applicable regulation relating to the proper
effective date of the appellant's reopened PTSD claim. R. at 11. Section
3.400(q)(1)(ii) provides:
(q) New and material evidence ( 3.516)-(1) Other than service
department records-(ii) Received after final disallowance. Date of
receipt of new claim or date entitlement arose, whichever is later.
Here, the appellant reopened his PTSD claim with evidence of a current
PTSD diagnosis. R. at 84- 86. It was only during the appeals process
that the PTSD diagnosis was confirmed and VA had a
duty to seek corroborating evidence of the appellant's in-service
stressors. USASCRUR records
were obtained after VA's first request for such records in 1997. R. at
219-41. As these records were
never unavailable, 3.156© is inapposite, and the Board properly
applied 3.400(q)(1)(ii) entitling the appellant to an effective date of
January 25, 1989.
The majority remands this matter to the Board for further development
hinging on the possibility that a retrospective examination will show the
appellant suffered from PTSD symptoms prior to 1989. However, no amount
of further development will render 3.156© applicable to the facts of
this case. Whether or not the appellant experienced symptoms prior to
1989 does not alter the fact that VA had no duty to seek USASCRUR records
prior to the current reopening because there was no established diagnosis
of PTSD before that. Here, after a diagnosis was established, VA sought
to confirm the appellant's stressors and USASCRUR records were recovered
subsequent to VA's first request in 1997. R. at 219-41. For all the
reasons stated above, no amount of further consideration or development by
the Board will alter the fact that the USASCRUR records were never
unavailable during the prior proceeding and a remand is not warranted.
See NLRB v. Wyman- Gordon Co., 394 U.S. 759, 766 n.6 (1969) (stating that
judicial review of an agency's action should not be converted into a "ping-
pong game" where remand is "an idle and useless formality"). Accordingly,
I would affirm the Board's August 2, 2005, decision.
http://search.vetapp.gov/isysquery/bca3e3b...68408883/2/doc/
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