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Vigil Vs Peake

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allan

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  • HadIt.com Elder

. 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/

Edited by allan
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  • HadIt.com Elder

Dear Allan, Thank you for posting this but could you also post the Federal Circuit's decision in this case? Please search online under Federal Circuit AND Vigil v. Peake.

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  • HadIt.com Elder

Hello Delta,

searched at http://www.cafc.uscourts.gov/dailylog.html for Vigil v. Peake in 2009 and 2008 decisions.

Also under new cases. Search pulled up nothing.

Is there another court besides fed circuit, this could be at?

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  • HadIt.com Elder

I did find this, if it's any help.

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] 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© 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] 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] 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.

--------------------------------------------------------------------------------

[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).

[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.

[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.

*********************************************

DECISION ASSESSMENT DOCUMENT

Vigil v. Peake, February 12, 2008, No. 05-3246

United States Court of Appeals for Veterans Claims (Court)

What the case is about:

The Court held that the application of 38 C.F.R. § 3.156© is not solely limited to misplaced service department records.

If 38 C.F.R. § 3.156© is applicable, it authorizes an effective date of either the date of the original claim or the date entitlement arose, whichever is later. Such a date could be earlier than the date of the claim to reopen. If so, VA would need to assign a disability evaluation earlier than the date of claim to reopen as well. In such a case, VA might be required to assist the veteran, under 38 U.S.C. § 5103A, in developing evidence relevant to the service-connected disability for the period beginning on the effective date of the award, but before the date of the claim to reopen.

Impact on VBA:

No new impact warranting regulatory revision or Manual change.

Summary of the facts and Court’s reasons:

The veteran filed a claim for service connection for post traumatic stress disorder (PTSD) in December 1980 that was denied because a VA examination found no diagnosis of PTSD. An appeal was not perfected and the decision became final. The veteran submitted another claim for PTSD in January 1989. While the claim was pending, the veteran provided medical evidence of a PTSD diagnosis and the U.S. Armed Services Center for Research of Unit Records (CURR) provided records that confirmed the veteran’s stressor account. After a series of remands, service connection was granted for PTSD with a 100 percent evaluation from January 1989, the date of the claim to reopen.

The Board of Veterans’ Appeals, in August 2005, denied the veteran’s appeal for an earlier effective date on the ground that the CURR records had not been misplaced or erroneously omitted from the initial determination and therefore were not the type of records contemplated in 38 C.F.R. § 3.156© and there was no diagnosis of PTSD in the record at the time of the original decision denying the claim.

38 C.F.R. § 3.156© was revised during the pendency of the appeal. The Court held that the clarifying statements in the preamble to the revised regulation were relevant to the proper adjudication of the claim. The aspects of the statement relevant in the present case were: (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.

Accordingly, the Court, although not reversing the Board’s decision and holding that § 3.156© was for application, held that the Board erred in rejecting the application of the regulation to the CURR records on the basis that it was limited to misplaced records. The Court indicated in a footnote that it was not holding that § 3.156© warrants an earlier effective date in the present case or all cases that are denied for a lack of diagnosis and later reopened and granted based on service records not previously obtained. The Court limited its holding to the conclusion that the Board’s decision that § 3.156© did not apply rested on a faulty premise.

The Court also held that if § 3.156© is applicable, the duty to assist would require development not limited to determining current degree of disability, but would include developing evidence concerning when the veteran first suffered with the disability and to what extent prior to reopening.

The Court did not address the veteran’s claim of whether a retroactive medical examination was required and directed that the Board address the issue in the first instance on remand.

The Court remanded the Board’s August 2005 decision for adjudication consistent with its opinion.

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  • HadIt.com Elder

When and if I ever get off the BVA/VARO remand circus and recieve a final denial by the BVA, Ken Carpenter is who I want to work my claim for COVA.

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