Shipley: An Earlier Effective Date Under 38 CFR 3.156(c)

Dale R. Shipley v. Eric K. Shinseki, Opinion Number 09-197, decided June 30, 2011 involved a veteran’s claim for an earlier effective date for a 70% PTSD rating.

This Vietnam veteran had applied for various claims in 1994 and in 1995 was denied for all but the PTSD claim which was held open as the VA attempted to verify his PTSD stressor. The veteran filed a NOD in 1995 for all claims. The PTSD claim was finally decided and denied by the VARO in 1996. The veteran did not file a NOD for that claim.

In 2002 the veteran filed to reopen the claim and in 2005 was service connected for PTSD effective 2002 based on a March 1967 battle involving his brigade that specifically required all cooks, clerks, and other available personnel to block the penetration of the infantry’s perimeter. The veteran sought an earlier effective date.

First, the veteran argued that his 1995 NOD put the PTSD claim into appellate status, however, the Court found the RO did not issue any decision on the PTSD claim until 1996. Because the 1995 decision deferred a decision on the PTSD claim until more research could be conducted into the stressor, it was not a final decision and not subject to being appealed.

Second, the veteran argued that 38 CFR 3.156(c) allowed for an earlier effective date in reopened claims that are granted on the basis of newly acquired service department records. Specifically, in 2003, the veteran had his DD-214 corrected to include the Presidential Unit Citation. He also submitted a printout from a private website showing an April 1967 recommendation for the Presidential Unit Citation due to the March 1967 battle. Section 3.156(c) requires that the newly acquired documents have existed prior to the first determination and that the veteran had submitted sufficient information for the VA to identify and obtain the records.

The Court said: “In this case, VA had, at the time it initially denied the PTSD claim in August 1996, the appellant’s dates of service in Viet Nam, his unit assignment, and evidence that he worked as a cook. Moreover, VA had the appellant’s reported stressors, namely, taking the field with the 4^th Infantry Division, being exposed to gunfire while working patrol, and being part of a battle in which 717 Viet Cong and 100 Americans were killed. It is therefore unclear why VA, before rendering a decision in August 1996, did not obtain the PUC narrative, a report all but confirming the appellant’s account”. Id. at *8.

The VA tried to argue the printout showing the PUC recommendation was from a private website and not an official document, however, the Court found the original copy of the document would constitute an official service department record.

Judge Hagel went further and in a separate decision said he would vote to not just remand but order the VA to assign an earlier effective date.

The case is an important reminder to keep up with your case and file the appropriate notices whether they be a notice of disagreement or a Form 9. This can be complicated when multiple claims exist at various stages important. Additionally, the case shows the power of seeking an earlier effective date when the VA has failed to properly develop a claim before denying and the power of private records, many of which are available online.

Decided by Judges Hagel, Moorman and Schoelen.