Single Judge Application; Delisio v. Shinseki, 25 Vet.App. 45, 54 (2011); Sanchez-Benitez v. West, 13 Vet.App. 282 (1999)

Excerpt from decision below: "Fourth, the feet examiner provided no explanation for his conclusion that "[the appellant's] ankle edema is not caused by or as a result of his flat feet." R. at 926-27. Fifth, the feet examiner indicated that the appellant's "complaints, examination findings[,] and radiographs are consistent with plantar fasciitis and heel spur syndrome," but the examiner provided no opinion as to whether either the appellant's plantar fasciitis or his heel spur syndrome is related to his service-connected pes planus. Id.; see Delisio v. Shinseki, 25 Vet.App. 45, 54 (2011) (if information obtained during the processing of a claim reasonably indicates that the cause of the condition for which compensation is sought is a disability that maybe associated with service, the Secretary generally must investigate whether the causal disability is related to service, in order to determine whether the claimed condition is related secondarily to service). The Court also notes that the Board, in addressing the appellant's ankle pain, may have narrowed the holding of Sanchez-Benitez v. West, 13 Vet.App. 282 (1999), as it relates to this case. While the Board cited that case for the proposition that "pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection maybe granted," the Court there stated that "pain alone without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection can be granted." Id. at 285 (emphasis added); R. at 11. In accordance with this holding, the Board failed to make a finding as to whether the appellant had an identifiable ankle malady or condition." =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1135 FREDDIE L. GIBSON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KRAMER, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KRAMER,Judge: The appellant appeals from the December 15,2010, decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for (1) a bilateral ankle disorder (claimed as chronic ankle pain), to include as secondary to service-connected bilateral pes planus; and (2) prostate cancer. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate when the issue is of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Board's December 2010 decision will be affirmed, in part, and vacated, in part, and the vacated matter will be remanded for further proceedings consistent with this decision. Bilateral Ankle Disorder In November 2000, the appellant was granted service connection for flat feet, with a noncompensable rating. Record (R.) at 1326-31. In February 2004, the appellant filed a claim for service connection for chronic ankle pain, secondary to his service- connected flat feet. R. at 1137- 38. VA medical records reflect ankle pain, ankle tenderness on palpation, and swollen ankles at various points in time. See, e.g., R. at 915-27, 986-87, 988, 996-97, 1139-40, and 1160. In the decision under review, the Board noted that the appellant's medical records reflected these symptoms, but found that those records lacked a diagnosis of a current ankle disorder or of a chronic ankle disorder. R. at 9-13. Based on the lack of a medical diagnosis of an ankle condition, the Board determined that the appellant did not have a current ankle disability. R. at 11. Based on the lack of a current ankle disability, the Board denied the claim. See Hickson v. West, 12 Vet.App. 247, 253 (1999) (establishing service connection requires, inter alia, evidence of a current disability). The Board partiallyrelied on two VA medical examinations, both conducted on June 7, 2007. R. at 915- 927 (ankle examination), 928-32 (feet examination). The appellantarguesthatboth ofthesemedicalexaminations areinadequate. Appellant's Br. at 7-10; see Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided."). The Court agrees and finds clearly erroneous the Board's determination that the VA examinations are adequate. See D'Aries v. Peake, 22 Vet.App. 97, 104 (2008) ("Whether a medical examination is adequate is a finding of fact, which this Court reviews under the 'clearly erroneous' standard."). First, the examiners reached different conclusions regarding the appellant's ankle condition, despite the fact that they were conducted on the same day. For example, the ankle examiner report found no history of, or current, ankle symptoms, while the feet examiner noted ankle edema and "pain with forced dorsiflexion of ankle at posterior calcaneous insertion of Achilles." R. at 917-19, 921, 927. Second, the examinations addressed whether the appellant had a current ankle condition at the time of the examinations, but neither examination specificallydiscussed whether the appellant had a medical condition involving his ankles at any time since he filed his claim in February 2004. See McClain v. Nicholson, 21 Vet.App. 319, 321 (2007) (the current disability requirement for service connection is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," and that entitlement to service connection may be granted "even though the disability resolves prior to the Secretary's adjudication of the claim”). Third, the feet examiner, while noting ankle swelling and pain, did not provide any 2 diagnosis or explanation why a diagnosis could or should not be made, despite specifically noting that the appellant was seeking service connection for an ankle condition. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) ("[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). Fourth, the feet examiner provided no explanation for his conclusion that "[the appellant's] ankle edema is not caused byor as a result of his flat feet." R. at 926-27. Fifth, the feet examiner indicated that the appellant's "complaints, examination findings[,] and radiographs are consistent with plantar fasciitis and heel spur syndrome," but the examiner provided no opinion as to whether either the appellant's plantar fasciitis or his heel spur syndrome is related to his service-connected pes planus. Id.; see Delisio v. Shinseki, 25 Vet.App. 45, 54 (2011) (if information obtained during the processing of a claim reasonably indicates that the cause of the condition for which compensation is sought is a disability that maybe associated with service, the Secretary generally must investigate whether the causal disability is related to service, in order to determine whether the claimed condition is related secondarily to service). The Court also notes that the Board, in addressing the appellant's ankle pain, may have narrowed the holding of Sanchez-Benitez v. West, 13 Vet.App. 282 (1999), as it relates to this case. While the Board cited that case for the proposition that "pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection maybe granted," the Court there stated that "pain alone without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection can be granted." Id. at 285 (emphasis added); R. at 11. In accordance with this holding, the Board failed to make a finding as to whether the appellant had an identifiable ankle malady or condition. Accordingly, the Court will vacate the Board's denial of service connection for a bilateral ankle condition and remand that matter for further proceedings consistent with this decision. On remand the Board should also address whether any of the appellant's medical records constitute an informal claim for an increased rating of his service-connected bilateral pes planus under 38 C.F.R. § 3.157(b)(1) (medical records can serve as an informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"). 3 Prostate Cancer With respect to his service-connection claim for prostate cancer, the appellant argues that a July 2007 VA genitourinary examination was inadequate because the examiner did not include an opinion as to the etiology of his prostate cancer. Appellant's Brief (Br.) at 10-11; R. at 902-11. The examination in question focused on issues relevant to a disability rating for the appellant's prostate cancer, and did not address nexus to service, apparently under the assumption that the appellant had served in Vietnam and would be presumptively service-connected. R. at 896. VA notified the appellant in an August 2007 rating decision that he had no service in Vietnam and that therefore the examination should not have been conducted. Id. There is no evidence that VA provided a further examination relating to prostate cancer. The Court finds that, even assuming VA erred in not providing a followup nexus medical opinion or, in the alternative, proper notice to the appellant that one would not be conducted, such error was not prejudicial. See Sanders, supra. Service connection requires, inter alia, evidence of in-service incurrence or aggravation of a disease or injury. See Hickson, supra. The Board found thattheappellant's servicemedicalrecords, includingtheappellant'sseparationexamination,support a conclusion that the appellant did not have a prostate disorder in service. R. at 13. This finding is supported by the record. The appellant has identified no evidence, lay or otherwise, indicating in- service incurrence of a disease or injury, and there does not appear to be any in the record on appeal. Accordingly, the Court is unable to conclude that the appellant was prejudiced by the lack of a medical examination as to a causal relationship between any in-service injury or disease and the appellant's prostate cancer. See Sanders, supra. CONCLUSION Upon consideration of the foregoing, the submissions of the parties, and the record on appeal, that part of the December 15, 2010, Board decision denying service connection for a bilateral foot condition is VACATED and the matter is remanded for further proceedings consistent with this decision. That part of the Board's decision denying service connection for prostate cancer is AFFIRMED. 4 DATED: August 27, 2012 Copies to: Ronald C. Sykstus, Esq. VA General Counsel (027) 5

Tyrues v. Shinseki, NO. 04-584(Dated: August 23, 2012 Per Curiam Order); 120 Day Tolling; Definition of Claim

Excerpt from decision below: "As discussed in the Court's October 2009 decision, the Federal Circuit in Elkins held that, "[b]ecause . . . each 'particular claim for benefits' may be treated as distinct for jurisdictional purposes, a veteran's claims may be treated as separable on appeal." 229 F.3d at 1376. Further, "the unique statutory process of adjudication through which veterans seek benefits may necessarily require that the different issues or claims of a case be resolved at different times, both by the agency of original jurisdiction and on appeal." Id. at 1375. In recently quoting this conclusion, the Federal Circuit in Sturdivant v. Shinseki, No. 2011-7001, 2012 WL 1720380 (Fed. Cir. May 16, 2012) (nonprecedential opinion), explained: "This flexible system benefits veterans by permitting adjudication of issues as they become ripe while allowing the VA time to appropriately develop other issues or claims." Id. at *3. ========================= Dissent: "If the majority opinion is affirmed, the courts will eventually have to sort through the myriad of ugly procedural issues that arise under Title 38 when the statutory term "claim" does not actually mean "claim," at least some of the time. See Tyrues I, 23 Vet.App. at 195-96 (Lance, J., concurring in part and dissenting in part) (outlining several of the statutory interpretation problems created by the majority opinion). ========================= UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 04-584 LARRY G. TYRUES, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge, and HAGEL, MOORMAN, LANCE, DAVIS, and SCHOELEN, Judges.1 O R D E R In an en banc decision dated October 2, 2009, the Court (1) vacated an April 7, 2004, decision of the Board of Veterans' Appeals (Board) denying Larry G. Tyrues entitlement to service connection on a presumptive basis under 38 U.S.C. § 1117 for a respiratory or lung condition resulting from an undiagnosed illness incurred in military service in the Persian Gulf and remanded that matter for further proceedings; and (2) dismissed, for lack of jurisdiction, the appeal from a September 29, 1998, Board decision denying Mr. Tyrues service connection for a lung disorder on a direct basis under 38 U.S.C. § 1110.2 Tyrues v. Shinseki, 23 Vet.App. 166, 179-85 (2009) (en banc). The Court concluded that "a final Board decision denying VA disability compensation based upon direct service connection, while the consideration of benefits based upon presumptive service connection is still under adjudication, constitutes a final decision subject to separate appeal to the Court." Id. at 176 (discussing Elkins v. Gober, 229 F.3d 1369, 1373-76 (Fed. Cir. 2000)). Specifically, as to the 1998 Board decision, the Court held that the decision was "final concerning the issue of section 1110 compensation for direct service connection for a lung disability" and that, "[b]ecause the appellant did not file a [Notice of Appeal (NOA)] within 120 days after VA mailed notice of the Board's final September 1998 decision, the Court lacks jurisdiction to review the September 1998 Board decision." Id. at 181 (citing 38 U.S.C. § 7266(a)). Mr. Tyrues appealed that decision to the Federal Circuit. On February 11, 2011, the Federal Circuit affirmed this Court's holding that "the September 1998 Board decision was properly dismissed for lack of jurisdiction." Tyrues v. Shinseki, 631 F.3d 1 Judges Pietsch and Bartley did not participate in this decision because a full-Court conference was held in this matter subsequent to the April 12, 2012, remand from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and prior to their appointment. See Court's Internal Operating Procedures VII(b)(3) (En Banc Review Granted). 2 The 1998 Board decision also had remanded to a VA regional office, for further development, the matter of service connection on the presumptive basis that, 5 years later, resulted in the April 2004 Board decision now on appeal. 1380 (Fed. Cir. 2011). The Federal Circuit agreed that the "non-remanded portion" of the 1998 Board decision was a final decision for the purpose of 38 U.S.C. § 7266(a) and held: "In light of § 7266's plain language, the policy considerations, and this court's precedent[,] all final decisions, even those appearing as part of a mixed decision [(i.e., a decision containing remanded and nonremanded portions)], must be appealed within 120 days from the date of mailing of notice of the decision." Id. at 1385. Mr. Tyrues filed a petition for writ of certiorari, which the U.S. Supreme Court granted, and the Supreme Court vacated the judgment of the Federal Circuit and remanded the case to the Federal Circuit for further consideration in light of Henderson v. Shinseki, 131 S. Ct. 1197 (2011) (Henderson III), which held that the 120-day deadline for filing an appeal with this Court–although an important procedural rule–does not have jurisdictional consequences. Tyrues v. Shinseki, 132 S. Ct. 75 (2011). In an April 12, 2012, order, the Federal Circuit, in turn, vacated this Court's judgment and remanded the case "for further proceedings to determine whether the non-jurisdictional nature of the 120-day deadline should lead to a different result." Tyrues v. Shinseki, No. 2010-7011, 467 F. App'x 889, 2012 WL 1389702 (Fed. Cir. Apr. 12, 2012). The Federal Circuit issued mandate on June 4, 2012. After reviewing the Court's October 2, 2009, decision, the Court has determined that the nonjurisdictional nature of the 120-day deadline does not lead to a different result. The result reached by the Court was that the 1998 Board decision was a final decision on the matter of entitlement to service connection for a lung disorder on a direct basis under section 1110; and dismissal of that part of the appellant's April 2004 appeal as to the 1998 Board decision was appropriate because Mr. Tyrues failed to file an NOA within 120 days after the 1998 Board decision was mailed, as required under 38 U.S.C. § 7266(a). Tyrues, 23 Vet.App. at 180-82. Although the 120-day deadline is no longer jurisdictional, it is an "important procedural rule,"Henderson III, 131 S. Ct. at 1206, and is subject to equitable tolling within the parameters established by the Federal Circuit and this Court prior to Henderson v. Peake, 22 Vet.App. 217 (2008) (Henderson I) (holding that equitable tolling was not for application under any circumstances), aff'd sub nom. Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en banc) (Henderson II), rev'd, 131 S. Ct. 1197 (2011). Bove v. Shinseki, 25 Vet.App. 136 (2011) (per curiam order) (citing cases). A review of the docket in this case reveals that Mr. Tyrues filed his appeal in April 2004, prior to Henderson I, which held in 2008 that equitable tolling of the 120-day filing period was not permitted. At the time he filed his briefs with this Court, however, in November 2004 and February 2005, the 120-day period was subject to equitable tolling, yet he presented no argument that the time to file an appeal from the 1998 Board decision should be equitably tolled. Similarly, although Mr. Tyrues was given an opportunity to brief the impact of Henderson III prior to the Federal Circuit's recent decision remanding this matter to this Court, see Tyrues v. Shinseki, 2010-7011 2 (Fed. Cir. Mar. 22, 2012) (order), he did not argue that the time to file should be equitably tolled.3 Rather, throughout this litigation, Mr. Tyrues has only pursued the argument that VA "incorrectly split [his] singular claim for service-connected lung disorder into two claims based upon differing theories of etiology." Appellant's Brief at 9. As discussed in the Court's October 2009 decision, the Federal Circuit in Elkins held that, "[b]ecause . . . each 'particular claim for benefits' may be treated as distinct for jurisdictional purposes, a veteran's claims may be treated as separable on appeal." 229 F.3d at 1376. Further, "the unique statutory process of adjudication through which veterans seek benefits may necessarily require that the different issues or claims of a case be resolved at different times, both by the agency of original jurisdiction and on appeal." Id. at 1375. In recently quoting this conclusion, the Federal Circuit in Sturdivant v. Shinseki, No. 2011-7001, 2012 WL 1720380 (Fed. Cir. May 16, 2012) (nonprecedential opinion), explained: "This flexible system benefits veterans by permitting adjudication of issues as they become ripe while allowing the VA time to appropriately develop other issues or claims." Id. at *3. Accordingly, because the appellant (1) did not file an NOA within 120 days after VA mailed the Board's September 1998 decision, (2) filed no asserted appeal for more than 5 years thereafter, and (3) did not assert that the time to file his appeal should be equitably tolled, the Court reaffirms its 2009 decision that any appeal from the September 1988 Board decision was required to have been filed within the 120-day period. See 38 U.S.C. § 7266(a); Elkins, supra. Upon consideration of the foregoing, it is ORDERED that this Court's October 2, 2009, decision dismissing the appeal as to the September 29, 1998, Board decision is MODIFIED, as discussed above, to reflect that (1) the 120-day deadline is nonjurisdictional but nevertheless an important procedural rule subject to equitable tolling, not argued or warranted in this case; (2) the nonjurisdictional nature of the 120-day rule does not alter the Court's holding that the 1998 Board decision was final on the matter of entitlement to service connection for a lung disorder on a direct basis under 38 U.S.C. § 1110; and (3) dismissal of the April 2004 appeal as to the 1998 Board decision was appropriate. Judgment on the Court's October 2, 2009, decision, as MODIFIED, shall enter in accordance with Rule 36 of the Court's Rules of Practice and Procedure. DATED: August 23, 2012 PER CURIAM. HAGEL, Judge, concurring in the result, dissenting in part: I continue to concur in the majority's ultimate conclusion that the Court cannot review the September 1998 Board decision 3 The Court takes judicial notice of the parties' pleadings filed in this case at the Federal Circuit. See Cotant v. Principi, 17 Vet.App. 116, 125 (2003) (taking judicial notice of pleadings, including the parties' arguments regarding legislative and regulatory history, that had been filed in another case pending before the Court). 3 because no Notice of Appeal was filed within 120 days of that decision. I also concur in the majority's new analysis regarding the applicability of equitable tolling. However, I again write separately to reiterate my belief, first stated in my separate statement to the October 2009 decision, that our inability to review the September 1998 Board decision stems from the fact that a claim for benefits for a chronic lung disorder is a separate and distinct claim for VA compensation purposes from a claim for benefits for Persian Gulf Syndrome under 38 U.S.C. § 1117. I need not restate the entirety of my earlier separate statement here; suffice it to say that my position is unchanged. LANCE, Judge, with whom SCHOELEN, Judge, joins concurring in part and dissenting in part: I continue to concur in the majority's outcome on the theory addressed in the majority opinion in Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (en banc) (Tyrues I). I also concur in the majority's new analysis regarding the applicability of equitable tolling. However, I again write separately to state that I continue to disagree, for the reasons outlined in my dissent in Tyrues I, with the majority's conclusion that we lack jurisdiction over the entire claim. As with my other dissenting colleague, I will not restate my prior opinion here. However, there are two points that are worth noting at this stage. First, although there is no evidence that the appellant in this particular case could carry his burden to prove equitable tolling, the fundamental problem is still one of protecting the appellate rights of unsophisticated claimants who diligently pursue their claims. As I pointed out in my original dissent, the majority opinion is based upon the veteran-unfriendly presumption that this Court's decision provides adequate notice to unrepresented claimants that they must immediately appeal a bifurcated decision or lose their appellate rights. 23 Vet.App. 166, 195 (2009) (Lance, J., concurring in part and dissenting in part). Thus, it is entirely possible for a claimant to diligently contest his or her claim only to discover that he or she has forfeited part of it because it is not obvious to a lay person that a Board decision must be appealed immediately when part of a claim has been remanded for further consideration. However, the solution to protecting diligent claimants is not to sub silentio overrule this Court's decision by applying equitable tolling in the absence of evidence. Rather, it is to simply base our decision on a realistic expectation of diligence on the part of claimants who lack attorneys to advise them. Accordingly, the Supreme Court's decision to remand this matter for further consideration in light of Henderson v. Shinseki, 131 S.Ct. 1197 (2011), highlights one of the central flaws of the majority opinion. Second, I am compelled to note that the Federal Circuit's first decision in this case does not appear to actually address the situation presented by the facts of the case. See Tyrues v. Shinseki, 631 F.3d 1380 (Fed. Cir. 2011), vacated, 132 S. Ct. 75 (2011) (mem.). The Federal Circuit framed the issue as "whether the non-remanded portion of a mixed decision from the Board is final." Id. at 1383. However, this case is not about a "mixed decision," where the Board denies one claim while remanding another. This case is about the finality of a single claim that the Board bifurcates based upon different theories. Accordingly, when the Federal Circuit held that "[s]eparate claims are separately appealable. Each particular claim for benefits may be treated as distinct for jurisdictional purposes," id., it misses the mark. 4 It is well established that separate claims are jurisdictionally separate, see, e.g., Elkins v. Gober, 229 F.3d 1369, 1376 (Fed. Cir. 2000), and that all theories of entitlement to benefits for a particular condition are part of the same claim, see Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); see also Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (holding that the scope of a claim is generally defined by the symptoms for which a veteran is seeking compensation). Allowing separate claims addressed within one Board decision to be treated separately for purpose of appeal promotes speedy and efficient resolution of claims. Defining claims broadly to encompass all theories of entitlement is beneficial to veterans because it provides them with broad assistance and the earliest possible effective date in the frequent situation where the veteran is entitled to compensation for his condition, but the initial theory of the case is not the one that leads to benefits. The hard question presented by this case is how to handle VA's practice of bifurcating a single claim and adjudicating different theories separately. That is the question to which the system needs a clear answer. I believe it is necessary and appropriate to point it out at this juncture so that when this case is again reviewed by the Federal Circuit, it can provide clear guidance in announcing whatever conclusion it reaches. It is not common for a claim to be bifurcated based upon the Gulf War illness statute and the traditional compensation statute. However, it is quite common to see a claim where the theories of direct, presumptive, or secondary service connection have been bifurcated. If the majority opinion is affirmed, the courts will eventually have to sort through the myriad of ugly procedural issues that arise under Title 38 when the statutory term "claim" does not actually mean "claim," at least some of the time. See Tyrues I, 23 Vet.App. at 195-96 (Lance, J., concurring in part and dissenting in part) (outlining several of the statutory interpretation problems created by the majority opinion). If the majority's opinion is rejected, then the system will need to adjust the handling of a large number of cases to conform to the new interpretation. Although the proper outcome may be debatable, no final resolution is certainly the worst possible outcome. Nevertheless, to be clear, I have great respect for the court above and I do not relish critiquing their decision. However, I believe that there are certain circumstances in which we are obligated to raise an issue that may frustrate our ability to follow the Federal Circuit's mandate. See, e.g., Hayre v. Principi, 15 Vet.App. 48, 52-54 (2001). This is one of those times. Accordingly, for the reasons stated, I continue to stand by my prior dissent and I urge the Federal Circuit to clearly and directly address this issue of exceptional importance when this matter returns to that court. 5

Single Judge Application, Sexual Trauma; Patton v. West, 12 Vet.App. 272, 277 (1999); Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011);

Excerpt from decision below: "The Court is not persuaded bythe Board's reasoning. Although the SMRs are silent as to the appellant having being raped, the SMRs do not contradict her statement. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.")see McLendon v.Nicholson, 20Vet.App. 79,85(2006); see also Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that "[t]he absence of actual evidence is not substantive 'negative evidence'"). It is not surprising that a rape victim would be silent regarding the fact that she had been raped, and there is no medical reason why a doctor would be expected to comment on the reasons why a patient is seeking an abortion. See Buczynski, supra; VA adjudicators are required to consider evidence of behavioral changes to corroborate a stressor involving sexual trauma precisely because there may be little or no direct evidence that the incident occurred. See Patton v. West, 12 Vet.App. 272, 277 (1999) (acknowledging the VA Adjudication Procedures Manual's recognition that, "[b]ecause assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported"); YR v. West, 11 Vet.App. 393, 397-98 (1998). The fact that the appellant was sexually active at a time she claims to have been raped is not a sufficient reason to find that the SMRs are inconsistent with her stressor statement. ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0950 FAYE H. NESBIT-NETCLIFF, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Faye H. Nesbit-Netcliff, appeals through counsel a January 11, 2011, Board of Veterans' Appeals (Board) decision that determined there was no new and material evidence to reopen disability compensation claims for a left foot disability, migraine headaches, and a cervical spine disorder. Additionally, the Board denied disability compensation benefits for post-traumatic stress disorder (PTSD). The Board also denied an increased rating for right ulnar neuropathy and postoperative right hallux valgus of the right toe. Record (R.) at 3-31. Because the appellant makes no argument alleging error regarding the Board's denial of her rating increase claims, the Court considers these matters abandoned on appeal. See Ford v. Gober, 10 Vet.App. 531, 535 (1997)(holding claims not argued on appeal are deemed abandoned). Both parties have filed briefs. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will vacate the Board decision in part and remand the matters for further adjudication, and the Court will affirm the decision in part. I. PTSD CLAIM A. Background The appellant served on active dutyin the U.S. Armyfrom October 2, 1979, to July 17, 1987. R. at 2237. The appellant's entrance medical examination indicates that she was not diagnosed with any mental disorders. R. at 1688. In January 1981, the appellant was pregnant and had an abortion. R. at 18, 1577. In July 1982, the appellant requested a profile for a nervous condition because she was having difficulty adjusting to a new environment. R. at 1460. She reported that her private medical records would show a history of nervous problems in her family. Id. Although the service medical records (SMRs) indicate that a copy of medical records from her private physician would be obtained, there is no indication that such a request was made for these records. R. at 1460. In July 1986, the appellant was referred for a mental health evaluation by a neurologist who was treating her for back problems.1 R. at 875-76. The neurologist requested the evaluation because the appellant was having difficulty with her supervisor. After undergoing unspecified testing, the mental health department concluded that the appellant was suffering from job-related stress and conflict with her supervisor. Id. at 875. Although she was not diagnosed with any mental disorder, the mental health department determined that she had "interpersonal liabilities and problematic personality/behavioral trai[ts], with somatoform tendencies."2 Id. Approximately, a year after the appellant was discharged from service, she underwent a medical examination in connection with a job application with the U.S. Post Office. R. at 2196-2201. She stated that she had not been treated for a psychiatric disorder, but she indicated that she had taken Elavil, a medication prescribed for treatment of depression. R. at 2198. In July 2003, the appellant was referred to a VA psychologist for depression. R. at 1937. She reported that she was depressed because she was in "chronic pain." Id. at 1937. Her symptoms The SMRs are not in the record, but they are discussed extensively in an August 2006 medical record from a VA psychologist. R. at 875-76. Somatoform disorders are a group of mental disturbances where the patient has physical symptoms that appear to be psychogenic and cannot be attributed to organic diseases. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 485 (4th ed. 1994) (DSM-IV). 2 2 1 included diminished appetite with weight loss and difficulty staying motivated and focused on activities. Id. She reported that she took Zoloft in the past for depression. Id. She reported that she was sexually harassed in the military, which included inappropriate touching, but she did not answer whether she had been raped. Id. at 1938-39. She was referred for further evaluation and medication management. R. at 1939. The appellant began treatment for depression and was subsequently diagnosed with PTSD. R. at 413, 859. On May25, 2005, the appellant filed a claim for disability compensation benefits for PTSD. She described multiple stressors involving sexual trauma. R. at 216-17. For example, she complained that during basic training drill sergeants would select recruits with whom they would have sex in exchange for drugs, alcohol, and food. Id. When she was assigned to Fort Rucker, she was raped by a staff sergeant. Id. She stated that she did not report the attack to officials because she did not think she would be believed. Id. After she was assigned to Fort Meade, she was groped bya captain who threatened to end her career if she reported that attack. Id. The appellant stated that her PTSD symptoms were aggravated when she encountered this ex-captain at a VA facility many years after she was discharged from the military. Id. Mary Andrews, the appellant's mother, submitted a statement that she would never forget the night her daughter told her that she had an abortion because she had been raped. R. at 84. To support her claim, the appellant submitted several medical reports from Dr. Hoeper, her treating psychiatrist. R. at 50-51, 81-82, 496-98, 579-80. Dr. Hoeper diagnosed the appellant with PTSD and major depression. R. at 50. Her current symptoms included frequent nightmares, difficulty sleeping, social isolation, hyperviligance, and intrusive thoughts. Id. Between August and October 2006, the appellant participated in a 12-week treatment program to assist veterans who experienced multiple sexual trauma (MST). R. at 794, 798-807. She also underwent neuropyschological testing because of concerns surrounding recent memory problems. R. at 874-80. Afterthreehoursofpsychologicaltesting,the appellant was diagnosed with "PTSD, Adjustment Disorder with mixed anxiety and depressed mood ( secondary to physical disability and losses); pain disorder associated with both psychological factors and general medical condition." R. at 878-79. The record also contains evidence that the appellant was awarded 3 disability benefits from the Social Security Administration for PTSD and depression, effective July 7, 2005. R. at 455, 485-86. In March 2006, the regional office (RO) denied entitlement to service connection for PTSD. R. at 966-73. The appellant appealed the decision to the Board, and on January 11, 2011, the Board issued the decision here on appeal. R. at 767-71, 905-24. B. Analysis To establish service connection for PTSD, a claimant must present (1) evidence of a current diagnosis of PTSD; (2) evidence of an in-service stressor, with credible supporting evidence that the claimed in-service stressor occurred; and (3) evidence of a causal nexus between the current symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f) (2012); see Cohen v. Brown, 10 Vet.App. 128, 138 (1997). When a claim for PTSD is based on a noncombat stressor, "the noncombat veteran's testimony alone is insufficient proof of a stressor." Moreau v. Brown, 9 Vet.App. 389, 396 (1996). In claims for PTSD based on an in-service personal assault, "evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident." 38 C.F.R. § 3.304(f)(5); see Bradford v. Nicholson, 20 Vet.App. 200, 205 (2006). The types of corroborating evidence include, but are not limited to " records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy." 38 C.F.R. § 3.304(f)(5). Additionally, "[e]vidence of behavior changes following the claimed assault is one type of relevant evidence that maybe found in these sources." 38 C.F.R. § 3.304(f)( 5). Evidence indicating a change in behavior includes, "but is not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social changes." 38 C.F.R. § 3.304(f)(5). In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), " medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See also Patton, 12 Vet.App. at 280 (rejectingthe requirement that "something more than medical nexus 4 evidence is required to fulfill the requirement for 'credible supporting evidence' " in personal-assault cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). Accordingly, the Federal Circuit held that a favorable medical opinion diagnosing PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1. The Court reviews the Board's factual determination as to the sufficiency of corroborative evidence of the in-service stressor under the "clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Sizemore v. Principi, 18 Vet.App. 264, 270 (2004) (citing Pentecost v. Principi, 16 Vet.App. 124, 129 (2002) (regarding corroborative evidence)). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Board must also provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Whatever the type of evidence, it is the Board's province to determine its credibility and weight. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The credibilityof a witness can be impeached bya showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. See Caluza, 7 Vet.App. at 511. In this case, the Board denied the appellant's PTSD claim after concluding that her account of MST during service was "not credible because it was inconsistent with the objective evidence of record." R. at 19. The appellant argues that this conclusion by the Board " is unsupportable and in violation of § 3.304(f)(5)." Appellant's Brief (Br.) at 11. The Secretary counters that the Board provided an adequate statement of reasons or bases and plausibly determined that hte appellant was not entitled to disability benefits for PTSD. Secretary's Br. at 5. 5 The Court agrees with theappellant. TheBoardgaveseveral examples for its conclusion that there was an inconsistency between the appellant's stressor statement and the "objective evidence." For example, the Board concluded that even though the appellant's SMRs showed that she had an abortion in 1981,"the pregnancy . . . may not have been due to rape as she now contends" because her SMRs also indicated that she had been "sexually active throughout her entire period of service." R. at 20. Apparently, the Board concluded that the appellant's allegation that her pregnancy was the result of rape was inconsistent with her SMRs. The Court is not persuaded bythe Board's reasoning. Although the SMRs are silent as to the appellant having being raped, the SMRs do not contradict her statement. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.")see McLendonv.Nicholson, 20Vet.App. 79,85(2006); see also Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting) (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that "[t]he absence of actual evidence is not substantive 'negative evidence'"). It is not surprising that a rape victim would be silent regarding the fact that she had been raped, and there is no medical reason why a doctor would be expected to comment on the reasons why a patient is seeking an abortion. See Buczynski, supra; VA adjudicators are required to consider evidence of behavioral changes to corroborate a stressor involving sexual trauma precisely because there may be little or no direct evidence that the incident occurred. See Patton v. West, 12 Vet.App. 272, 277 (1999) (acknowledging the VA Adjudication Procedures Manual's recognition that, "[b]ecause assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported"); YR v. West, 11 Vet.App. 393, 397-98 (1998). The fact that the appellant was sexually active at a time she claims to have been raped is not a sufficient reason to find that the SMRs are inconsistent with her stressor statement. Although the SMRs do not directly prove that the appellant was raped, this evidence does corroborate her allegation and the Board may not dismiss this evidence because the appellant was sexually active. The Board also pointed to an inconsistency between a statement the appellant made on her separation examination indicating that she did not have "frequent trouble sleeping," and a statement she made to Dr. Hoeper that she began having nightmares during service. Other than note that the 6 appellant's nightmaresbeganduringservice,Dr.Hoeper's reportdoesnotstatethefrequencyofthose nightmares. Because Dr. Hoeper's report is silent on the frequency of the appellant's nightmares during service, there is no inconsistency between her statement on her separation examination that she did not have frequent nightmares and her report to Dr. Hoeper that she began having nightmares during service. The Board also found that the appellant's personnel records did not show signs of behavorial changes such as disciplinary actions or drop in performance. However, the Board did not discuss the July 1986 SMRs, which indicate that the appellant was evaluated by a military psychologist at the recommendation of her neurologist because of difficulty she had getting along with her supervisor. R. at 809-10. The Board had an obligation to discuss this evidence, which is the type of evidence that §3.304(f)(5) recognizes may demonstrate a change in behavior. See 38 C.F.R. § 3.304(f)(5) (directing VA to look at records from mental health counseling). The Board was also persuaded that the appellant was not credible because of an August 2006 report from a VA psychologist, who concluded that the appellant "appeared to be purposefully feigningproblems forsecondarygainorunconsciouslyconvertingstressandexaggeratingsymptoms to obtain security and support from others." R. at 21. However, upon review of the full report, it is clear that the Board took the VA psychologist's statement out of context. On August 3, 2006, the appellant underwent neuropsychological testing because of recent memory deficits. The psychologist noted that the appellant's level of functioning declined after a series of emotionally traumatic events, including the death of her husband and sister. R. at 879. After testing, the psychologist stated: [T]here was evidence in the appellant's medical records to suggest a possibility of somatization as a coping mechanism or that emotional concerns are converted to physical problems. This is not to say that Ms. Nesbitt does not have pain and dysfunction related to her physical injuries and illness. However, it is possible that the losses she has experienced exacerbated the severity of her pain and physical disability. R. at 813. The psychologist also noted that there was a possibility that the appellant was over medicated because she was seeing multiple psychiatrists. The psychologist recommended further testing "to help differentiate between a more psychologicallyhealthyandpurposefulattempt to feign 7 problemsforsecondarygainoramorepathologicalprocess ofeitherunconsciouslyconvertingstress or exaggerating symptoms to obtain security and support from others." Id. Although the psychologist raised several possibilities to explain the appellant's memory and cognitive deficits, he did not reach a conclusion as to the cause of her deficits. Importantly, the VA psychologist never questioned the appellant's alleged stressor as he diagnosed her with PTSD attributedto in-servicesexual trauma. Severalweeksaftertheappellantunderwentthepsychological testing, her treating VA psychologist informed her that the neuropsychological evaluation showed that her cognitive deficits were not secondary to brain damage "but may reflect a combined impact of anxiety[,] depression, and somatization." R. at 807. The appellant's treating psychologist advised her to continue psychotherapy, practice being less impulsive, and perform cognitive exercises. R. at 807. Given the inconclusive nature of the August 2006 psychologist's report, and the subsequent VA psychiatric treatment report indicating that the appellant's cognitive deficits were attributed to anxiety, depression, and somatization, the Board could not have relied on the August 2006 report as "probative" evidence regarding the appellant's credibility. Because the Board provided an inadequate statement of reasons or bases for its conclusion that the appellant's account of her MST stressors was not credible, the Court will vacate the Board's findings on this issue and remand the matter for further proceedings. II. CLAIMS TO REOPEN Pursuant to 38 U.S.C. § 5108, "if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "New and material evidence" is defined as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with pervious evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 8 38 C.F.R. § 3.156(a) (2012); see also Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (explaining that § 3.156(a) "must be read as creating a low threshold" and that it " suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibilityof substantiating the claim"). This Court has generally reviewed whether the appellant has submitted new and material evidence so as to reopen a prior claim under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). Elkins v. West, 12 Vet.App. 209, 216 (1999) (en banc); see also Fortuck v. Principi, 17 Vet.App. 173, 178-79 (2003) (Board determinations as to whether new and material evidence has been presented reviewed under the "clearly erroneous" standard of review). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting U.S. Gypsum Co., 333 U.S. at 395). As with other findings, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday, and Gilbert, both supra. Whether evidence is new and material depends on the basis for which the claim was previously denied. See Kent v. Nicholson, 20 Vet.App. 1, 10 (2006); Evans v. Brown, 9 Vet.App. 273 (1996) (holding that evidence is material if it is relevant to and probative of an issue that was a specific basis for denial of the last final disallowance), overruled, in part, on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000) (stating that Hodge left intact the requirement that the evidence must be relevant to and probative of an issue that was a specified basis for the last final denial). A. Neck Disability In March 2005, the RO denied the appellant's claims for disability compensation benefits for degenerative disc disease and degenerative joint disease of the cervical spine because there was no evidence that, despite being treated in service for cervical strain, the appellant had a chronic neck disability that began during service. R. at 1798-99. In December 2007, the RO determined that no new and material evidence had been submitted to reopen her neck disability claim. R. at 602-12. 9 In the Board decision here on appeal, the Board determined that there was no new and material evidence to reopen the appellant's claim for disability compensation benefits for a neck disability. R. at 13-15. The Board noted that there was medical evidence submitted after the March 2005 RO decision denying the neck claim, which discussed the nature and severity of the appellant's current neck disability. Additionally, the appellant submitted a July 2006 buddy statement that her military job as a baggage handler caused her to suffer injuries during service, but the statement did not specify the type of injuries the appellant suffered. The Board found that none of this evidence was new and material because it did not discuss the relationship between the appellant's current neck disability and service. R. at 13-15. The appellant has the burden of demonstrating that the Board has committed prejudicial error. Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary "[i]n the absence of demonstrated prejduice"); see also Sanders v. Shinseki, 129 S. Ct. 1696, 1704 (2009) (holding that the appellant generally bears the burden of demonstrating prejudicial error on appeal). See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) ("The Court requires that an appellant plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments."), vacated on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008). The appellant does not demonstrate either that the Board's decision is clearly erroneous or that it failed to support its decision with an adequate statement of reasons or bases. See Coker, supra. B. Left Foot Disability In July 1987, the appellant filed a claim for disability compensation benefits for a bilateral foot disability, including flat feet and hallux valgus. R. at 2241-42. In January1988, the RO granted disability compensation benefits for hallux valgus of the right foot but denied disability compensation benefits for hallux valgus of the left foot and bilateral flat feet after concluding that these conditions preexisted serviceand were not aggravated in service. R. at 2212-15. Theappellant did not appeal that decision. In the Board decision here on appeal, the Board concluded that the appellant had not submitted new and material evidence to reopen his left foot disability claim. R. at 10-11. In doing so, the Board noted that the evidence submitted since January1988 discussed the appellant's current 10 disability but did not discuss the onset of her left foot disability or indicate that this disability was aggravated during service. Id. The Board also noted that a buddy statement, which stated that the appellant had unspecified in-service injuries, was not material because it lacked specificity. The appellant fails to demonstrate that the Board erred in concluding that there was no new and material to reopen her claim. Like the appellant's cervical disability claim, the appellant simply lists the evidence that was added to the record with her reopened claim, but makes no argument as to why the Board's conclusion that the evidence was not new and material is clearly erroneous. The appellant fails to demonstrate either that the Board's decision is clearly erroneous or that it failed to support its decision with an adequate statement of reasons or bases. See Coker, supra. III. ADDITIONAL MATTERS In connection with the appellant's claims to reopen her disabillity compensation benefits for left foot and cervical neck disabilities, the appellant argues that the Board erroneously applied the statutory presumption of soundness. Appellant's Br. at 14-16. The appellant's argument is not persuasive. The only issue before the Board was whether there was new and material evidence to reopen finally denied claims as to these matters. 38 U.S.C. § 5108. It is only after a claim is reopened and adjudicated on the merits, that the issue of the appellant's soundness on entry may be relevant. Accordingly, the appellant's arguments must fail. To the extent that the appellant may be alleging clear and unmistakable error (CUE) in the original RO decisions, she must first raise her CUE arguments and obtain a decision from the RO. See Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc) (holding that neither the Court or the Board has jurisdiction over an allegation of CUE that has not been presented and adjudication by an RO). The appellant also argues that because there is medical evidence indicating that she is unemployable because of her PTSD, the Board erred when it failed to adjudicate her entitlement to a total rating based on individual employability (TDIU). Appellant's Br. at 16. The appellant's argument has no merit. Entitlement to TDIU is a "downstream" issue that is decided by VA only after entitlement to disability compensation has been granted. See Evans v. West, 12 Vet.App. 396, 399 (1999) (effective date is a "downstream matter" to be addressed after the benefit has been 11 awarded). Accordingly,becausetheappellant's entitlementto disabilitycompensation forPTSD has not been established, the issue of TDU was not before the Board. IV. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, that portion of the Board's January11, 2011, decision related to the PTSD is VACATED and the matter is REMANDED for further proceedings. That portion of the January 11, 2011, Board decision finding no new and material evidence to reopen the left foot disability and cervical spine disorder claims is AFFIRMED . DATED: August 8, 2012 Copies to: Paul M. Goodson, Esq. VA General Counsel (027) 12

Cline v. Shinseki, NO. 10-3543 (Argued June 13, 2012 Decided August 16, 2012); 38 C.F.R. § 3.156(c)(2); Retroactive Application

Excerpts from decision below: "Because the Board improperly applied amended 38 C.F.R. § 3.156(c)(2) retroactively, the Court will vacate that portion of the July 2010 Board decision that determined that an effective date prior to May 6, 1999, was not warranted and remand that issue for readjudication ..." ============ "Consequently, prior to October 2006, the effective date of the amended regulation, there was no limitation on VA's ability to reconsider previously decided claims in light of the submission of new and material service department records." =========== "Contrary to the view of our dissenting colleague, we are not holding that [preamendment] § 3.156(c) 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 [pre-amendment] § 3.156(c) necessarily is for application here. Rather, we are holding that the Board's decision that [preamendment] § 3.156(c) does not apply to Mr. Vigil's claim rests on a faulty premise. Vigil, 22 Vet.App. at 66 n.3." =========== c. Mayhue v. Shinseki In Mayhue, the veteran argued that the Board erroneously applied the amended version of §3.156(c) to his claim retroactively, and, alternatively, that if the amended version did apply, he did not fall within the purview of subsection (c)(2). The Court extensively recounted the history of § 3.156(c) and, in discussing new §§ 3.156(c)(1) and (c)(3), stated that those amendments "were not intended to be substantive changes to VA's well-established practice of reconsidering claims based on newly discovered service department records and assigning an effective date as early as the date that the initial claim was filed." Mayhue, 24 Vet.App. at 278. After analyzing Vigil, the Court in Mayhue stated: "[U]nder either pre-amendment or amended § 3.156(c), a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim." Id. at 279. The Court in Mayhue expressly declined to address the question of retroactivity squarely raised by Mr. Cline in this case because it found that the information that VA ultimately relied upon to obtain the service department records that formed the basis for granting Mr. Mayhue's claim had been in Mr. Mayhue's claims file all along. The Court, therefore, also did not consider whether the addition of § 3.156(c)(2) amounted to a substantive change in regulation. Id. ("Even assuming the Secretary's view that § 3.156(c)(2) . . . codified VA's long-standing practice of limiting reconsideration of claims based on a claimant's lack of cooperation–the view least favorable to the veteran–the Court finds that § 3.156(c)(2) was not for application in this case."). We will now do so." ================ "Substantive rules "'grant rights, impose obligations, . . . [and] narrowly constrict the discretion of agency officials by largely determining the issue addressed,'" whereas interpretative rules "'express the agency's intended course of action or its tentative view of the meaning of a 9 particular statutory term'" and do not "'foreclose alternative courses of action or conclusively affect rights of private parties.'" Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 908-09 (5th Cir. 1983) (quoting Batterton v. Marshall, 648 F.2d 694, 701-02 (D.C. Cir. 1980) (footnotes omitted)); see also Paralyzed Veterans of America v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998)(stating that interpretative rules are those that clarify or explain existing law or regulation); Air India v. Brien, 261 F. Supp. 2d 134, 141 (E.D.N.Y. 2003) (stating that substantive rules create new law, rights, or duties, in what amounts to a legislative act, while interpretive rules merely clarify an existing statute or regulation). Here, although the Secretary asserted at oral argument that the addition of subsection (c)(2) was merely intended as clarification of past practice, there is simply no evidence that this is so." ================ Dissent: "When VA amended § 3.156(c), it did not do so in a vacuum. Rather, as the Secretary made clear in his Federal Register notice proposing the amended regulation, VA's intent was to combine the provisions of § 3.156(c) with those of § 3.400(q)(2) and, in so doing, clarify existing VA practice to preclude a less favorable reading of those regulations. See 70 Fed. Reg. 35,388, 35,388 (June 20, 2005) ("We propose to include the substance of current [§] 3.400(q)(2) in revised § 3.156(c)."). +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3543 PHILLIP G. CLINE , APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued June 13, 2012 Decided August 16, 2012) Kenneth M. Carpenter, of Topeka, Kansas, for the appellant. Shanti L. Hageman, Appellate Attorney; with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Justin P. Zimmer, Acting Deputy Assistant General Counsel; all of Washington, D.C., joined, for the appellee. Before HAGEL, LANCE, and DAVIS, Judges. HAGEL, Judge, filed the opinion of the Court. LANCE, Judge, filed a dissenting opinion. HAGEL, Judge: Phillip G. Cline appeals through counsel a July 1, 2010, Board of Veterans' Appeals (Board) decision that granted entitlement to an initial disability rating of 70%, but no higher, for post-traumatic stress disorder, effective May 6, 1999, but no earlier.1 Mr. Cline's Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Because the Board improperly applied amended 38 C.F.R. § 3.156(c)(2) retroactively, the Court will vacate that portion of the July 2010 Board decision that determined that an effective date prior to May 6, 1999, was not warranted and remand that issue for readjudication consistent 1 The Board also remanded the matter of entitlement to a total disability rating based on individual unemployability, and that matter is not before the Court at this time. See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b) (1999))). with this decision. Because the Board properly considered and applied all applicable laws and regulations concerning the proper disability rating to be assigned for post-traumatic stress disorder, the Court will affirm the remainder of the Board decision. I. FACTS Mr. Cline served on active duty in the United States Army from July 1970 to March 1972, including service in Viet Nam. In January 1993, Mr. Cline sought entitlement to benefits for post-traumatic stress disorder. The following month, he submitted a post-traumatic stress disorder stressor questionnaire identifying several stressors. In response to the question, "Did you have any civilian friends killed, wounded, or executed," Mr. Cline stated that a "friend drowned" while Mr. Cline was stationed with the 25th Infantry, 3rd Squadron, 17th Air Cavalry, but he did not identify the friend by name. Record (R.) at 1920. In response to the question "How many civilians were involved," Mr. Cline wrote zero. Id. At a May 1993 VA examination, Mr. Cline reported to the examiner that, while he was in Viet Nam, his unit underwent numerous rocket and mortar attacks and he witnessed many people wounded, maimed, and killed. The examiner ultimately concluded that, although it was possible that Mr. Cline previously had a "mild case" of post-traumatic stress disorder, "it would appear that he no longer has sufficient symptoms to warrant the diagnosis." R. at 761. In June 1993, based largely on this examination report, a VA regional office denied Mr. Cline's claim for benefits. Mr. Cline did not appeal that decision, and it became final. In May 1999, Mr. Cline sought to reopen his claim for benefits for post-traumatic stress disorder. In September 1999, the regional office determined that Mr. Cline had not submitted new and material evidence establishing a diagnosis of post-traumatic stress disorder or a confirmed stressor and therefore declined to reopen the claim. A March 2000 VA progress note contains a diagnosis of post-traumatic stress disorder. As a basis for that diagnosis, the examiner recorded the following: The patient reports recurrent, intrusive distressing recollections of being in Vietnam. The patient reports that his dreams are "about my buddy that got killed." The patient's friend (Butch) was killed when he was out on a mission and drowned. 2 When the body was brought back to the unit, the patient requested to see the body one more time before it was prepared for departure to the United States. The patient remembers, "They unzipped the bag. He drowned. They had to send the Seals out to get him. I thought I wanted to see him before he went home. It was not a good idea." The patient cannot forget the disfigurement of his friend. R. at 1796. In July 2000, Mr. Cline submitted a post-traumatic stress disorder questionnaire in which he reported that his friend "Butch" was killed two weeks before his tour of duty was up. R. at 1764-66. In March 2001, the regional office asked Mr. Cline to "better identify the soldier" he referred to as "Butch." R. at 1735; see also R. at 1737 (December 2000 deferred rating decision). It does not appear that Mr. Cline responded to that request. In January 2002, the regional office denied entitlement to benefits for post-traumatic stress disorder because "there is no corroborated stressor basis for a diagnosis of this condition." R. at 1728. Mr. Cline filed a Notice of Disagreement with that decision and ultimately appealed to the Board. In August 2003, Mr. Cline sent a statement to VA outlining numerous claimed stressors. At that time, he identified "Butch" as Robert Clifton. R. at 1504. In March 2005, VA sought to corroborate Mr. Cline's account via the Center for Unit Records Research. In July 2005, VA received the following response: Our U.S. Army casualty data base reports Specialist Four Robert Clifton was drowned on October 23, 1971. Specialist Clifton was assigned to Alpha Troop 3rd Squadron[,] 17th Air Cavalry[,] located at Dí An, Republic of South Vietnam, at the time of his death. This was also Mr. Cline's unit of assignment during his tour in the Republic of Vietnam. R. at 1067. In September 2005, a VA examiner confirmed Mr. Cline's diagnosis of post-traumatic stress disorder based on the drowning of a fellow soldier, "the only stressor that has been verified." R. at 1001. In February 2006, based on confirmation of Mr. Cline's claimed stressor and resulting confirmed diagnosis, the regional office granted entitlement to benefits for post-traumatic stress disorder and assigned a 30% disability rating, effective April 24, 2000. Mr. Cline filed a Notice of Disagreement with that decision. 3 In January 2008, after several interim decisions, the regional office ultimately issued a Statement of the Case granting an effective date of May 6, 1999, for the initial award of benefits for post-traumatic stress disorder, assigning a 50% disability rating for that condition effective from that date, and assigning a 70% disability rating from January 22, 2007. Mr. Cline appealed to the Board. In July 2010, the Board issued the decision on appeal. With respect to the effective date for the initial award of benefits for post-traumatic stress disorder, the Board considered whether the response from the Center for Unit Records Research regarding the death of Specialist Clifton could satisfy 38 C.F.R. § 3.156(c)(1), which permits an effective date as of the original date of the claim (here, January 1993) in cases where service department records later associated with the claims file form the basis of the ultimate award of benefits. The Board concluded that, while the response from the Center for Unit Records Research was "likely the type of information contemplated" by the regulation (R. at 13), Mr. Cline's situation was more properly considered under § 3.156(c)(2), which states that subsection (a) does not apply where "the claimant failed to provide sufficient information for VA to identify and obtain the records." In particular, the Board found that Mr. Cline did not provide sufficient information in January 1993 for VA to attempt to corroborate his claimed stressor–seeing a friend or fellow soldier drown–with the Center for Unit Records Research. The Board stated that, although Mr. Cline did reference a friend's drowning at the time of his January 1993 application, he "did not provide the names of any casualties at that time and he stated that the names of any casualties were unknown." R. at 13-14. With respect to the disability ratings assigned for post-traumatic stress disorder, the Board reviewed the medical evidence of record and determined that a 70% disability rating was warranted for the period prior to January 21, 2007, but that no higher disability rating was warranted at any time. II. ANALYSIS A. Earlier Effective Date On appeal, Mr. Cline first contends that the Board erred in finding that an earlier effective date was not warranted because the Board failed to correctly apply 38 C.F.R. § 3.156(c). Specifically, Mr. Cline asserts that the Board "mistakenly concluded" that the exception of 4 § 3.156(c)(2) applies to his case and "mistakenly attempted to distinguish" Vigil v. Peake, 22 Vet.App. 63 (2008), which Mr. Cline contends was rejected by the Court in Mayhue v. Shinseki, 24 Vet.App. 273 (2011). Appellant's Brief (Br.) at 3-4. The Board determined that Mr. Cline first submitted the necessary information to verify his claimed stressor–that is, the name of his friend who drowned–some time after he submitted his May 6, 1999, request to reopen.2 R. at 14. As a result of receiving this information, the regional office granted his claim for benefits for post-traumatic stress disorder in an February 2006 rating decision and ultimately assigned an effective date of May 6, 1999. It is clear, then, that Mr. Cline submitted his claim to reopen, provided the information necessary to verify his stressor, and was awarded benefits all prior to October 2006 when amendments to § 3.156(c), including the addition of subsection (c)(2) discussed below, took effect. Therefore, the Board's application of § 3.156(c)(2) in this case is only proper if it applies retroactively to claims pending when the amendments took effect. 1. History of 38 C.F.R. § 3.156(c) a. Regulatory History To address this question, the Court must first consider the history of 38 C.F.R. § 3.156(c). In February 2006, when Mr. Cline was initially awarded benefits for post-traumatic stress disorder and assigned an April 2000 effective date, 38 C.F.R. § 3.156(c) provided, in pertinent part: Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and 2 The Board's discussion is oddly opaque on this point, but it has not escaped the Court's notice that Mr. Cline did not actually provide Specialist Clifton's name until 2003. R. at 1504. The Board does not explain why, if Mr. Clifton's name was the crucial piece of information needed to permit VA to seek corroborating records from the service department, an effective date of April 2003 was not more appropriate. Nevertheless, because of the Court's finding regarding the inapplicability of amended § 3.156(c)(2) and the fact that the Board's assignment of a May 1999 effective date is favorable to Mr. Cline, the Court need not concern itself further with the Board's vague discussion. See McClain v. Nicholson, 21 Vet.App. 319 (2007) (holding that the Court may not overturn uncontested favorable findings of the Board). The Court reminds the Board, however, that it is required to provide an adequate statement of reasons or bases for all of its conclusions. 38 U.S.C. § 7104(d)(1). 5 identified as such. . . . Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c) (2005) (emphasis added). At that time, 38 C.F.R. § 3.400(q)(2) provided that, when the new and material evidence submitted was service department records, the effective date of the claim would be: "To agree with evaluation (since it is considered these [service department] records were lost or mislaid) or date of receipt of claim on which prior evaluation was made, whichever is later, subject to rules on original claims filed within 1 year after separation from service." 38 C.F.R. § 3.400(q)(2) (2005). The Secretary has previously summarized the relationship between these provisions as follows: "In practice, when VA receives service department records that were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later."3 70 Fed. Reg. 35,388, 35,388 (June 20, 2005). In June 2005, the Secretary proposed to amend § 3.156(c) "to establish clearer rules regarding reconsideration of decisions on the basis of newly discovered service department records" and "to include the substance of current 38 C.F.R. 3.400(q)(2) in revised § 3.156(c)." Id. Of particular importance to this appeal, the Secretary added § 3.156(c)(1) which provides: Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. 38 C.F.R. § 3.156(c)(1) (2010).4 In the proposed rule, the Secretary explained that § 3.156(c)(1) specifically applied to "unit records, such as those obtained from the Center for Research of Unit 3 Although the Secretary's explanation implies a degree of discretion on his part in undertaking such reconsideration, stating that VA "may" reconsider its prior decision, the 2005 regulation is clear that such reconsideration was mandatory when service department records were added to the file (i.e., "the former decision will be reconsidered . . . ."). 4 Paragraph (a), which is not relevant here, provides that "a claimant may reopen a finally adjudicated claim by submitting new and material evidence" and defines "new evidence" and "material evidence." 38 C.F.R. § 3.156(a) (2012). 6 Records (CRUR) that pertain to military experiences claimed by a veteran. Such evidence may be particularly valuable in connection with claims for benefits for post traumatic stress disorder." 70 Fed. Reg. at 35,388. Section 3.156(c)(1)'s broad statement was limited by the creation of § 3.156(c)(2), which provides: Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2) (2010) (emphasis added). As the Secretary explained, "[t]his limitation would allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government, but limited by the extent to which the claimant has cooperated with VA's efforts to obtain these records." 70 Fed. Reg. at 35,388 (emphasis added). The amendments to § 3.156(c) became effective on October 6, 2006, and were not expressly made retroactive. See 71 Fed. Reg. 52,455 (Sept. 6, 2006). Consequently, prior to October 2006, the effective date of the amended regulation, there was no limitation on VA's ability to reconsider previously decided claims in light of the submission of new and material service department records. b. Vigil v. Peake In Vigil, as the Board discussed, the veteran was denied entitlement to benefits for posttraumatic stress disorder after a VA examiner determined that he did not suffer from that condition. After he sought to reopen his claim and submitted evidence of a current diagnosis, he was granted benefits for post-traumatic stress disorder when evidence was obtained from the United States Armed Services Center for Research of Unit Records (now known as the Army & Joint Services Records Research Center). The Center for Research of Unit Records provided the regional office with unit records describing an explosion at an ammunition dump that the veteran previously described as one of his stressors. The regional office relied, in part, on those records to award benefits, as the information in the records served to verify and support the veteran's claimed inservice stressor. The regional office assigned an effective date as of the date of the claim to reopen, and the veteran appealed. 7 In its decision, which was rendered under the pre-amendment version of § 3.156(c), the Board determined that § 3.156(c) did not apply, and therefore no reconsideration was required, because the records obtained and ultimately relied upon had not been misplaced or erroneously omitted and were therefore not the types of records contemplated by the regulation and because there was no diagnosis of post-traumatic stress disorder at the time of the original decision denying the veteran's claim. On appeal, the Court applied the clarifying statements contained in the Secretary's proposed rule and held that pre-amendment § 3.156(c), like amended § 3.156(c)(1) and (c)(3), "authorize[d] an effective date [for a claim reconsidered based on newly discovered service department records] as early as the date of the original claim up to the date of the claim to reopen." Vigil, 22 Vet.App at 65. Accordingly the Court concluded that the Board erred in finding that § 3.156(c) was inapplicable to the veteran's claim and remanded for the Board to apply that regulation. In so deciding, the Court accepted the parties' agreement that the clarifying statements in the proposed rule amending § 3.156(c) "should govern the interpretation of the pre-amended § 3.156(c), wherever relevant in this case." Id. (emphasis added). The Court then explained that the clarifying statements in the proposed rule were relevant only insofar as they established that (A) Applicability of [pre-amendment] § 3.156(c) 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) [pre-amendment] § 3.156(c) authorize[d] an effective date as early as the date of the original claim up to the date of the claim to reopen, and (C) application of [pre-amendment] § 3.156(c) require[d] a retroactive evaluation of disability. Id. The Court explicitly limited its analysis of the clarifying statements in the proposed rule to these three issues and did not address whether it was VA's practice under pre-amendment § 3.156(c) to prohibit reconsideration of a previously denied claim on the basis of newly associated service department records where the claimant did not provide sufficient information for VA to identify and obtain the records from the respective service department at the time that the claim was initially decided. Id. The facts of Vigil simply did not raise this issue. In addition, the Court explicitly stated that it was not holding that amended § 3.156(c) was retroactive, or even that § 3.156(c) was applicable in that case: 8 Contrary to the view of our dissenting colleague, we are not holding that [preamendment] § 3.156(c) 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 [pre-amendment] § 3.156(c) necessarily is for application here. Rather, we are holding that the Board's decision that [preamendment] § 3.156(c) does not apply to Mr. Vigil's claim rests on a faulty premise. Vigil, 22 Vet.App. at 66 n.3. c. Mayhue v. Shinseki In Mayhue, the veteran argued that the Board erroneously applied the amended version of §3.156(c) to his claim retroactively, and, alternatively, that if the amended version did apply, he did not fall within the purview of subsection (c)(2). The Court extensively recounted the history of § 3.156(c) and, in discussing new §§ 3.156(c)(1) and (c)(3), stated that those amendments "were not intended to be substantive changes to VA's well-established practice of reconsidering claims based on newly discovered service department records and assigning an effective date as early as the date that the initial claim was filed." Mayhue, 24 Vet.App. at 278. After analyzing Vigil, the Court in Mayhue stated: "[U]nder either pre-amendment or amended § 3.156(c), a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim." Id. at 279. The Court in Mayhue expressly declined to address the question of retroactivity squarely raised by Mr. Cline in this case because it found that the information that VA ultimately relied upon to obtain the service department records that formed the basis for granting Mr. Mayhue's claim had been in Mr. Mayhue's claims file all along. The Court, therefore, also did not consider whether the addition of § 3.156(c)(2) amounted to a substantive change in regulation. Id. ("Even assuming the Secretary's view that § 3.156(c)(2) . . . codified VA's long-standing practice of limiting reconsideration of claims based on a claimant's lack of cooperation–the view least favorable to the veteran–the Court finds that § 3.156(c)(2) was not for application in this case."). We will now do so. Substantive rules "'grant rights, impose obligations, . . . [and] narrowly constrict the discretion of agency officials by largely determining the issue addressed,'" whereas interpretative rules "'express the agency's intended course of action or its tentative view of the meaning of a 9 particular statutory term'" and do not "'foreclose alternative courses of action or conclusively affect rights of private parties.'" Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 908-09 (5th Cir. 1983) (quoting Batterton v. Marshall, 648 F.2d 694, 701-02 (D.C. Cir. 1980) (footnotes omitted)); see also Paralyzed Veterans of America v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998)(stating that interpretative rules are those that clarify or explain existing law or regulation); Air India v. Brien, 261 F. Supp. 2d 134, 141 (E.D.N.Y. 2003) (stating that substantive rules create new law, rights, or duties, in what amounts to a legislative act, while interpretive rules merely clarify an existing statute or regulation). Here, although the Secretary asserted at oral argument that the addition of subsection (c)(2) was merely intended as clarification of past practice, there is simply no evidence that this is so. In proposing the addition of subsection (c)(2), the Secretary wrote: We propose in § 3.156(c)(2) to limit the application of this rule by stating that it "does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or the claimant failed to provide VA sufficient information for VA to identify and obtain the records from the respective service department, the Center for Research of Unit Records, or from any other official source." Reconsideration based upon service department records would not be available in cases where the claimant did not provide information that would have enabled VA or another federal agency to identify and search for relevant records. This limitation would allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government, but limited by the extent to which the claimant has cooperated with VA's efforts to obtain these records. 70 Fed. Reg. at 35,389 (emphasis added). There is no indication in this statement that it had been VA's regular practice to decline to reconsider prior claims where claimants were found to have provided incomplete evidence. In fact, the use of the auxiliary verb "would" indicates what VA anticipated would happen in the future because of this change. Additionally, the Court need not accept VA's characterization of the action. See Hemp Indus. Ass'n v. Drug Enforcement Admin., 333 F.3d 1082, 1087 (9th Cir. 2003). The plain language of § 3.156(c)(2), when compared to the plain language of pre-amendment § 3.156(c), created a bar to reconsideration based on newly associated service department records in particular circumstances where absolutely no bar previously existed. Accordingly, the Court concludes that the addition of subsection (c)(2), effective October 2006, was a substantive rule change. Having found the change 10 in regulation to be substantive, we now consider whether amended § 3.156(c)(2) may be applied retroactively, as the Board did here. 2. Retroactivity As an initial matter, the Court notes that "[r]etroactivity is not favored by the law," and "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). In Princess Cruises, Inc. v. United States, the United States Court of Appeals for the Federal Circuit (Federal Circuit) announced three factors that the Court must weigh to determine whether a regulation should be given retroactive effect: (1) "'the nature and extent of the change of the law;'" (2) "'the degree of connection between the operation of the new rule and a relevant past event,'" (3) and "'familiar considerations of fair notice, reasonable reliance, and settled expectations.'" 397 F.3d 1358, 1364 (Fed. Cir. 2005) (quoting Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994)). In the instant case, each of these factors weighs against giving retroactive effect to amended § 3.156(c). First, the nature and extent of the change in law is substantial. As discussed above, when § 3.156(c)(2) became effective in October 2006, it created a bar to reconsideration of claims based on the submission of new and material service department records where none had previously existed–that is, VA was no longer required to reconsider claims where the claimant failed to provide sufficient information to identify and obtain the service department records. Creating a complete bar to reconsideration where no limitation of any kind existed before is analogous to the "large change in the law" found in Princess Cruises where the U.S. Bureau of Customs and Border Protection imposed a 100% harbor maintenance tax on cruise ships where there had previously been none. See 397 F.3d at 1364-65; cf. Tarver v. Shinseki, 557 F.3d 1371, 1375 (Fed. Cir. 2009) (holding that a change in the law governing dependency and indemnity compensation claims was not significant because the amended regulation merely reinstated VA's earlier interpretation of a statute); Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008) (same). Accordingly, the nature and extent of the change in law is substantial and weighs strongly against giving retroactive effect to amended § 3.156(c). 11 There is also a high degree of connection between the operation of the new rule and a relevant past event. In Princess Cruises, the amount of harbor maintenance tax that the cruise line would have to pay hinged on how many passengers either disembarked or boarded at layover ports subject to the tax, and, prior to the imposition of this tax, the cruise line never had to collect or maintain this data. 397 F.3d at 1366. Accordingly, the Federal Circuit found that the degree of connection was strong because application of the new law to the previous conduct would necessarily result in the cruise line being overcharged because it could not retroactively obtain the information necessary for a proper assessment. Id. Likewise, retroactive application of § 3.156(c)(2) would necessarily impose a penalty on Mr. Cline for conduct that was not previously prohibited.5 Therefore, there is a high degree of connection between the operation of amended § 3.156(c)(2) and Mr. Cline's submission of information in connection with his claim to reopen his previously denied claim for benefits for post-traumatic stress disorder. Finally, familiar considerations of fair notice, reasonable reliance, and settled expectations counsel against giving amended § 3.156(c)(2) retroactive effect. Here, the Secretary made the amendments to § 3.156(c) effective October 2006 and did not specifically make them retroactive. See 71 Fed. Reg. at 52,455. As the Supreme Court explained in Landgraf, "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." 511 U.S. at 265. Mr. Cline was not given notice of any kind that the Secretary intended to create a new bar to reconsideration before he ultimately provided information sufficient to verify his stressor. Accordingly, the familiar considerations of fair notice, reasonable reliance, and settled expectations also weigh in Mr. Cline's favor. Consequently, because all three Princess Cruises factors weigh against giving retroactive effect to amended § 3.156(c)(2), the Court concludes that the Board erred in retroactively applying that regulation's exception to deny Mr. Cline entitlement to an earlier effective date for his service- 5 For purposes of this analysis, the Court assumes, without deciding, that Mr. Cline failed to provide sufficient information in January 1993 for VA to identify and obtain his service department records because if he had, § 3.156(c)(2) would not apply. See Mayhue, 24 Vet.App. at 279; 38 C.F.R. § 3.156(c)(2) (2012). 12 connected post-traumatic stress disorder.6 Accordingly, the Court will vacate that part of the Board's decision that denied entitlement to an earlier effective date for post-traumatic stress disorder and remand the matter for the Board to apply 38 C.F.R. § 3.156(c) (2005). Specifically, the Board must determine the proper effective date for Mr. Cline's award of benefits for post-traumatic stress disorder, irrespective of the date on which he provided sufficient information for VA to obtain the service department records, and which may be as early as the date of the original claim. See Mayhue, 24 Vet.App. at 279; Vigil, 22 Vet.App at 65; 38 C.F.R. § 3.156( c)(3) (2012); 38 C.F.R. § 3.400(q) (2005). On remand, Mr. Cline is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). B. Disability Rating Mr. Cline also argues that the Board erred in denying a higher initial disability rating for posttraumatic stress disorder. In that regard, he contends that the Board failed to correctly apply 38 C.F.R. § 4.3, which provides: It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. Mr. Cline's argument focuses on three Global Assessment of Functioning7 scores under 50 that had been assigned, see R. at 1445 (score of 40), 749 (score of 45), 486 (score of 40), and contends that they "supported the assignment of a 100% [disability] rating," as opposed to the 70% disability rating the Board assigned. Appellant's Br. at 13. He argues that these scores "raise[] a reasonable doubt regarding the degree of disability of [his] service[-]connected psychiatric disability." Id. The Court reviews the Board's application of the benefit of the doubt rule under the "clearly erroneous" standard of review. See Roberson v. Principi, 17 Vet.App. 135, 146 (2003). Although 6 Because the amended version of § 3.156(c)(2) does not apply retroactively, the Court need not address Mr. Cline's alternative argument regarding the sufficiency of the information he provided to VA. 7 A Global Assessment of Functioning score represents "the clinician's judgment of the individual's overall level of functioning" and is "useful in planning treatment and measuring its impact[ ] and in predicting outcome." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 30 (4th ed. 1994); see Richard v. Brown, 9 Vet.App. 266, 267 (1996). 13 Mr. Cline is correct that the record contains three Global Assessment of Functioning scores below 50, and that these scores are probative because they relate to the veteran's level of impairment as contemplated by the rating criteria for mental disorders, they are not dispositive of the proper level of disability. See Massey v. Brown, 7 Vet.App. 204, 207 (1994). Here, the Board considered all of Mr. Cline's Global Assessment of Functioning scores, along with evidence of his actual post-traumatic stress disorder symptoms. See 38 C.F.R. § 4.126(a)(2012) ("When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record ."). In fact, the Board assigned a 70% disability rating for the entire rating period in part because of Mr. Cline's Global Assessment of Functioning scores of 40 and 45. See R. at 20-21. To the extent that Mr. Cline contends that Global Assessment of Functioning scores below 50 necessarily correlate to a 100% disability rating, he argues with the way in which the Board weighed the evidence but does not demonstrate that the Board clearly erred in this regard. See Owens v. Brown, 7 Vet.App. 429, 433 (1995). Moreover, to the extent that the Board did not expressly state that there was no reasonable doubt regarding the proper disability rating, Mr. Cline has not demonstrated a requirement that the Board do so. Further, it is clear from the Board's extensive discussion of the evidence and the criteria for the various disability ratings for post-traumatic stress disorder that there was no reasonable doubt in this regard. Mr. Cline has also not demonstrated that he has been harmed in any way by the Board's failure to expressly state that it had considered and applied § 4.3. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"). Finally, Mr. Cline argues that the Board failed to correctly apply 38 C.F.R. § 4.7, which requires assignment of a higher disability rating where "the disability picture more nearly approximates the criteria required for that rating." 38 C.F.R. § 4.7 (2012). As discussed above, however, the Board extensively considered the evidence of record and expressly explained its determination that Mr. Cline's disability picture "more nearly approximates" a 70% disability rating. See R. at 20-22. Mr. Cline again merely disagrees with the way in which the Board weighed the 14 evidence. He has not demonstrated that the Board's determination is clearly erroneous or is unsupported by adequate reasons or bases. See 38 U.S.C. § 7104(d)(1); Owens, 7 Vet.App. at 433; Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). III. CONCLUSION Upon consideration of the foregoing, that portion of the July 1, 2010, Board decision that denied entitlement to an effective date prior to May 6, 1999, for the award of benefits for posttraumatic stress disorder is VACATED and the claim is REMANDED for readjudication consistent with this decision. The remainder of the Board decision is AFFIRMED. LANCE, Judge, dissenting in part: I fully agree with the majority that Mr. Cline is not entitled to an increased disability rating for his post-traumatic stress disorder (PTSD). However, as I believe that amended § 3.156(c)(2) does not have an impermissible retroactive effect, I would affirm, rather than remand, the Board's determination as to the proper effective date for the award of service connection for PTSD, and so I must respectfully dissent on that issue. When VA amended § 3.156(c), it did not do so in a vacuum. Rather, as the Secretary made clear in his Federal Register notice proposing the amended regulation, VA's intent was to combine the provisions of § 3.156(c) with those of § 3.400(q)(2) and, in so doing, clarify existing VA practice to preclude a less favorable reading of those regulations. See 70 Fed. Reg. 35,388, 35,388 (June 20, 2005) ("We propose to include the substance of current [§] 3.400(q)(2) in revised § 3.156(c)."). Thus, to ascertain whether § 3.156(c)(2) represents a substantive change, it must be compared not just to pre-amendment § 3.156(c) but also to § 3.400(q)(2). Pre-amendment § 3.400(q)(2), which governs the effective date for service connection after the discovery of previously unavailable service department records, states that VA will grant an earlier effective date on the basis of relevant service department records "since it is considered these records were lost or mislaid." 38 C.F.R. § 3.400(q)(2) (2005); see also § 3.156(c) (2005) ("This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to [VA]."). In other words, under the plain language of preamendment §§ 3.156(c) and 3.400(q)(2), entitlement to an earlier effective date on the basis of newly 15 discovered service records hinges on whether those records were lost or missing at the time of the original decision. Nothing in the regulatory history contradicts this plain meaning; indeed, the Secretary's statements indicate that he intended the amendments to liberalize, not restrict, the situations under which a claimant could be entitled to an earlier effective date: Even though the current language can be read as a limitation, in practice, VA does not limit its reconsideration to "misplaced" service department records. 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 a claim. The proposed revision to § 3.156(c) removes this ambiguity. 70 Fed. Reg. at 35,388 (emphasis added); see also Auer v. Robbins, 519 U.S. 452, 461–62 (1997) (noting that deference must be afforded to an agency's interpretation of a regulation); Smith v. Nicholson, 451 F.3d 1344, 1349–50 (Fed. Cir. 2006) (the Secretary's interpretation of his own regulations is "'of controlling weight unless it is plainly erroneous or inconsistent with the regulation'" (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945))). In short, both the plain meaning of the regulations and the Secretary's statements of intent make clear that the 2006 amendments were intended to liberalize § 3.156(c) to reflect VA practice, and that § 3.156(c)(2), rather than creating a bar to existing relief, was designed only to limit the reach of the liberalization. The majority ignores this distinction by focusing on the use of the word "would" in the Secretary's description of the effects of amended § 3.156(c)(2), see ante at __. However, when viewed in light of my analysis above, it is clear that use of the word "would" merely signifies the Secretary's intent to limit the scope of the proposed liberalization. Neither Vigil v. Peake, 22 Vet.App. 63 (2008), nor Mayhue v. Shinseki, 24 Vet.App. 273 (2011), contradict this view. In Vigil, the Court held only that unit records fell within the category of records contemplated by pre-amendment § 3.156(c). 22 Vet.App. at 66. It did not, however, interpret the provisions of § 3.400(q)(2), nor did it discuss under what situations § 3.156(c) was for application. Compare id. at 66 n.3 ("[W]e are not holding that § 3.156(c) warrants an earlier effective date in this case . . . or that § 3.156(c) necessarily is for application here.") with id. at 67 (Lance, J., dissenting) ("I believe that unavailable service records are those that VA had a duty to 16 seek and, for whatever reason, was not able to obtain."). Similarly, Mayhue, as the majority notes, explicitly declined to reach the issue of whether amended § 3.156(c)(2) has an impermissible retroactive effect. 24 Vet.App. at 279. Thus, as I read pre-amendment §§ 3.156(c) and 3.400(q)(2), VA technically had no duty to readjudicate claims based on newly discovered service department records unless those records were lost or unavailable at the time of the original decision. Given this interpretation of these regulations, I would hold that amended § 3.156(c)(2) does not have an impermissible retroactive effect, as it does not represent a departure from the pre-amendment regulations. In particular, reading pre-amendment §§ 3.156(c) and 3.400(q)(2) as applying only to records that were lost or missing at the time of the original decision forecloses application of those regulations to records that were not before VA for other reasons, such as negligence on the part of the Department of Defense or National Archives and Records Administration in forwarding records to VA, failure by VA to request adequately identified records, or where VA had no duty to obtain the records, either due to a claimant's failure to adequately identify records or because the duty did not otherwise arise. Although the Secretary specifically clarified that amended § 3.156(c) applied in cases of administrative error, he did not extend this liberalization to records not obtained by VA due to an appellant's failure to adequately identify them. See 70 Fed. Reg. at 35,389 ("This limitation would allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government."). Thus, in cases where an appellant did not adequately identify relevant unit records, neither the preamendment nor amended regulations allows for an earlier effective date on the basis of those records, and so amended § 3.156(c)(2) does not represent a change in the substance of the law. Here, there is no indication that the appellant's unit records were lost or missing at the time of the 1993 decision. Rather, VA simply had no duty to obtain those records. Under the laws and regulations at the time of the 1993 decision, VA had no duty to assist a claimant unless there was a well-grounded claim. See Morton v. West, 12 Vet.App. 477, 486 (1999), withdrawn, Morton v. Gober, 14 Vet.App. 174 (2000) (per curiam order), and superseded by statute, Veterans Claims Assistance Act of 2000 (VCAA), Pub L. No. 106-475, 114 Stat. 2096, as recognized in Duenas v. Principi, 18 Vet.App. 512 (2004). For a claim to be well grounded, the record had to contain (1) 17 medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table), superseded by statute, VCAA, as recognized in Duenas, supra. Absent a diagnosis of PTSD, the appellant's claim was not well grounded, and so VA had no duty to assist him in obtaining his unit records. See Morton and Caluza, both supra. In the alternative, even were I to read the 1993 RO decision as implicitly finding that the appellant's claim was well grounded, I would hold that the Board did not clearly err when it determined that VA lacked sufficient information in 1993 to verify the appellant's stressor. R. at 13; see 38 U.S.C. § 7261(a)(4); Hood v. Shinseki, 23 Vet.App. 295, 299 (2009) (holding that the Court reviews the Board's factual findings under the "clearly erroneous" standard). In either case, VA had no duty to obtain the appellant's unit records at the time of the 1993 decision, and so neither preamendment nor current § 3.156(c) is for application. See 38 C.F.R. § 3.159(c)(2)(i) (2012) ("The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records" by providing "enough information to identify and locate the existing records"); 38 C.F.R. § 3.159(b) (1993) ("When information sufficient to identify and locate necessary evidence is of record, [VA] shall assist a claimant by requesting . . . existing evidence which is either in the custody of military authorities or maintained by another Federal agency."). Although Title 38 is generous to veterans in many ways, there is simply no apparent reason why claimants who failed to provide sufficient information to even trigger the duty to assist should receive uniquely favorable effective date treatment where the evidence that they could have identified consists of service department records. Instead, VA's interpretation of its regulations—that such favorable treatment is limited to those whose claims are frustrated through no fault of their own—is logical and reasonable and deserves deference. Accordingly, I would affirm the Board's decision on the issue of entitlement to an earlier effective date and must, therefore, respectfully dissent from the majority opinion on that matter. 18