HadIt.com Elder allan Posted February 17, 2009 HadIt.com Elder Share Posted February 17, 2009 (edited) . 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 February 17, 2009 by allan Link to comment Share on other sites More sharing options...
HadIt.com Elder deltaj Posted February 24, 2009 HadIt.com Elder Share Posted February 24, 2009 (edited) 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. Edited February 24, 2009 by deltaj Link to comment Share on other sites More sharing options...
HadIt.com Elder allan Posted February 25, 2009 Author HadIt.com Elder Share Posted February 25, 2009 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? Link to comment Share on other sites More sharing options...
HadIt.com Elder allan Posted February 25, 2009 Author HadIt.com Elder Share Posted February 25, 2009 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. Link to comment Share on other sites More sharing options...
HadIt.com Elder Pete53 Posted February 25, 2009 HadIt.com Elder Share Posted February 25, 2009 Not surprised that Ken Carpenter was involved in this case. Veterans deserve real choice for their health care. Link to comment Share on other sites More sharing options...
HadIt.com Elder allan Posted February 25, 2009 Author HadIt.com Elder Share Posted February 25, 2009 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. Link to comment Share on other sites More sharing options...
Question
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.
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