Thursday, October 25, 2012

Single Judge Application, Cline v. Shinseki, ___ Vet. App. ___ , No. 10–3543, 2012 WL 3524832 (August 16, 2012); Retroactivity of Amendments to 3.156(c)

Excerpt from decision below: "The Court concludes that its recent holding in Cline v. Shinseki, ___ Vet. App. ___ , No. 10–3543, 2012 WL 3524832 (August 16, 2012), controls here.1 In Cline, the Court found that the Board erred in retroactively applying amended § 3.156(c)(2)'s exception to deny the appellant entitlement to an earlier effective date for his service-connected PTSD. Id. at *9. Therefore, given that the appellant submitted his claim to reopen prior to October 2006, when amendments to § 3.156(c), including the addition of subsection (c)(2), took effect, the Court is compelled in this case to conclude that the Board erred in retroactively applying that regulation's exception. The Secretary's argument that the Board decision should be affirmed because the Board made a finding of fact that the appellant was not diagnosed with PTSD prior to 1999 is mistaken. As noted in Cline, the version of § 3.156(c) in effect prior to October 2006 authorizes an effective date as early 1 The Court notes that, although Cline was issued subsequent to briefing in this matter, neither party advised the Court of this case. See U.S. Vet.App. R. 30(b) ("When pertinent and significant authority comes to the attention of a party after the party's brief has been filed or after oral argument but before the decision, a party shall promptly file notice with the Clerk, and serve all other parties.") 3 as the date of the original claim, up to the date of the claim to reopen, and application of the regulation requires a retroactive evaluation of the disability. Cline, 012 WL 3524832, at *5 (citing Vigil v. Peake, 22 Vet.App. 63, 65 (2008)). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2843 MICHAEL G. ADAMS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Michael G. Adams, through counsel, appeals a May 24, 2011, Board of Veterans' Appeals (Board) decision that denied his claim for an effective date prior to February 18, 1999, for the grant of service connection for post- traumatic stress disorder (PTSD). Record (R.) at 3-21. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the May24, 2011, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Armyfrom November 1967 to March 1971. See R. at 1086- 87. In the decision on appeal, the Board denied an effective date earlier than February 18, 1999, for the award of service connection for PTSD. R. at 19. The Board noted that the regional office (RO) received the appellant's original claim for entitlement to service connection for delayed stress syndrome on January 6, 1983, and denied entitlement to service connection for bipolar disorder, schizotypal personality disorder, and PTSD in August 1983. R. at 4-5. The Board then noted that the appellant filed a claim to reopen his claim for service connection for PTSD in February 1999, which was eventually granted in May 2008. The appellant was assigned an effective date of February 18, 1999, the date VA received his request to reopen the claim. R. at 4. The Board determined that, since VA received unit histories of the 669th Transportation Company and 523rd Transportation Company subsequent to the 1983 rating decision, the application of 38 C.F.R. § 3.156(c) (2012), as amended in 2006, must be considered. Id. However, the Board found that the veteran failed to provide sufficient information for VA to identify and obtain the unit records in 1983, relying on § 3.156(c)(2). R. at 13. The Board also found that the appellant's entitlement to service connection did not arise until September 1999. R. at 14. It further found, that "the Veteran does not have PTSD," and noted "[the Board] is being asked to assume a fact that it is not in accord with (that the Veteran has a disability related to his military service)." R. at 13-14. II. ANALYSIS The appellant argues that the Board failed to consider and correctly apply the provisions of 38 C.F.R. § 3.156(c) when assigning the effective date for his PTSD. Appellant's Brief (Br.) at 8; ReplyBr. at 8. Specifically, the appellantcontendsthattheBoarderroneouslyapplied the provisions of 38 C.F.R. § 3.156(c)(2) (2012) and should have reconsidered his original claim. Appellant's Br. at 5-6. The Secretary responds that the Board's determination that the appellant failed to provide sufficient information to identify the unit records used to verify his stressor at the time the original 1983 claim was decided is not clearly erroneous. Secretary's Br. at 6-7, 13-14. The Secretary also asserts that the Board found that an earlier effective date was not warranted under § 3.156(c)(3) because the evidence failed to show that he had a diagnosis of PTSD until September 1999, which is a basis independent of its reliance on § 3.156(c)(2). Secretary's Br. at 14. The appellant responds that the "minimal" discussion by the Board of the provisions of § 3.156(c)( 3) did not constitute an independent basis for denying reconsideration of the claim and that the finding of fact was made without VA having reconsidered the claim and without the retroactive evaluation required by the provisions of § 3.156(c)(4). Reply Br. at 6-7. InJune2005,theSecretaryproposedto amend§3.156(c)" toestablishclearerrulesregarding reconsideration of decisions on the basis of newly discovered service department records." 70 Fed. Reg. 35,388, 35,388 (June 20, 2005). Amendments to § 3.156(c) became effective on October 6, 2 2006, and were not expressly made retroactive. See 71 Fed. Reg. 52,455 ( Sept. 6, 2006). 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. 38 C.F.R. § 3.156(c)(1) (2012). However, under the 2006 amendment, paragraph (c)(1) does not apply to records that VA could not have obtained when it decided the claim because the claimant failed to providesufficient informationfor VA to identifyand obtain the records. 38 C.F.R. § 3.156(c)(2). Retroactivity 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 announced three factors that the Court must weigh to determine whether a regulation should be given retroactive effect: (1) "'the natureand extent of the change of the law;'"(2)" 'thedegreeofconnection between the operation of the new rule and a relevant past event,'" 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)). The Court concludes that its recent holding in ClineNext Hit v. Shinseki, ___ Vet. App. ___ , No. 10–3543, 2012 WL 3524832 (August 16, 2012), controls here.1 In Previous HitClineNext Hit, the Court found that the Board erred in retroactively applying amended § 3.156(c)(2)'s exception to deny the appellant entitlement to an earlier effective date for his service-connected PTSD. Id. at *9. Therefore, given that the appellant submitted his claim to reopen prior to October 2006, when amendments to § 3.156(c), including the addition of subsection (c)(2), took effect, the Court is compelled in this case to conclude that the Board erred in retroactively applying that regulation's exception. TheSecretary's argumentthattheBoarddecisionshould beaffirmedbecausetheBoardmade a finding of fact that the appellant was not diagnosed with PTSD prior to 1999 is mistaken. As noted in Previous HitClineNext Hit, the version of § 3.156(c) in effect prior to October 2006 authorizes an effective date as early 1 The Court notes that, although Previous HitClineNext Hit was issued subsequent to briefing in this matter, neither party advised the Court of this case. See U.S. Vet.App. R. 30(b) ("When pertinent and significant authority comes to the attention of a party after the party's brief has been filed or after oral argument but before the decision, a party shall promptly file notice with the Clerk, and serve all other parties.") 3 as the date of the original claim, up to the date of the claim to reopen, and application of the regulation requires a retroactive evaluation of the disability. Previous HitClineNext Document, 2012 WL 3524832, at *5 (citing Vigil v. Peake, 22 Vet.App. 63, 65 (2008)). Here, the Board found that the Secretary had fulfilled his duty to assist and that no further medical examination was warranted. See R. at 19. However, this finding was predicated, at least in part, on the Board's conclusion that § 3.156(c) was precluded in this case, on the improper grounds that an exception under § 3.156(c)( 2) (2012) applied. As 38 C.F.R. § 3.156(c) (2005) applies, a retroactive evaluation of the disability is mandated. Id. The duty to assist now may require the development of evidence regarding when the appellant first suffered from PTSD or the extent to which he suffered from PTSD prior to the date of his claim to reopen. See 38 U.S.C. § 5103A(a)(1) (requiring the Secretary to "make reasonable efforts to assist a claimant by obtaining evidence necessary to substantiate" the claim); cf. Chotta v. Peake, 22 Vet.App. 80, 84-85 (2008) (the duty to assist requires VA to assess whether a disability can be rated based upon the available evidence; if not, VA must determine whether a medical opinion, including a retrospective opinion, "is necessary to make a decision on the claim.") Therefore, the Court will vacate and remand the matter for the Board to apply 38 C.F.R. § 3.156(c) (2005). The Board must determine the proper effective date for the appellant's PTSD award, regardless of the date on which he provided sufficient information for VA to obtain the service department records, and which may be the date of the original claim or the date on which entitlement arose, whichever is later. See Mayhue v. Shinseki, 24 Vet.App. 273, 279 (2011). C. Other Factual Findings In regard to the Board's factual findings, that "the Veteran does not have PTSD" and "it is being asked to assume a fact that it is not in accord with (that the Veteran has a disability related to his military service)," these issues were not before the Board in the decision on appeal and, accordingly, the Board erred in making the findings. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (stating that the rule of finality is designed to " preclude repetitive and belated readjudication of veterans' benefits claims"); Juarez v. Peake, 21 Vet.App. 537 (2008) (Court must vacate Board findings if Board had no jurisdiction to make them); see also DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006) (Board lacks jurisdiction to make findings on issues that are not on appeal); Bissonette v. Principi, 18 Vet.App. 105, 110 (2004) (collateral estoppel or issue preclusion 4 mayprevent relitigation of an issue of fact or law alreadydecided). If VA believes that the appellant was improperly granted service connection for PTSD, it may initiate a severance determination to the appropriate VA RO, alleging clear and unmistakable error in the rating decision granting service connection, while affording the appellant all required due process procedures. See 38 U.S.C. § 5109A(c) ("Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary's own motion or upon request of the claimant."); 38 C.F.R. 3.105(d) ("Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous. . . . When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons"). However, VA may not functionally sever benefits without following the applicable procedure, by ignoring findings favorable to the veteran in a prior, final decision awarding benefits. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's May 24, 2011, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: October 9, 2012 Copies to: Kenneth M. Carpenter, Esq. VA General Counsel (027) 5