Tyrues: The Aftermath of Henderson or Timely Appeal of a Bifurcated Claim

Larry G. Tyrues v. Eric K. Shinseki, Opinion Number 04-584, decided August 23, 2012 involves a case in the line of Henderson (stating the 120 days to file the NOA is not jurisdictional but procedural).  This was a full panel decision (but without the new judges Bartley or Pietsch).

The veteran here had a claim for a lung disorder.  A1998 Board decision remanded a portion of the claim under a theory of Persian Gulf Syndrome but denied based on a direct theory of service connection.  The veteran allowed the remand to play out without immediately appealing the direct basis denial.  The Board, CAVC, and Federal Circuit all found the Board decision was final and the veteran did not file his NOA within 120 days.  However, the Supreme Court vacated and remanded in light of Henderson (stating the 120 days NOA time is procedural rather than jurisdictional).

The Federal Circuit remanded for consideration whether the non-jurisdictional nature of the 120 day NOA requirement should lead to a different result. 

The CAVC noted while the 120 day is not jurisdictional, it is still an important procedural rule.  It then recognized equitable tolling but found the veteran here did not argue for equitable tolling.  Instead, the veteran argued the VA incorrectly split his single claim for service connection of a lung disorder into two claims based on differing theories of etiology.  The Court rejected this argument saying “a veteran’s claims may be treated as separable on appeal” and stating the law permits “adjudication of issues as they become ripe”.  Id. at *3. 

Judges Lance and Schoelen signed an impassioned dissent which rejected the notion of splitting a single claim especially in claims involving pro se veterans.  Specifically, “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 was 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.”  Id. at *4.  The dissent notes this is not a situation where one claim is denied and another remanded but about the finality of a single claim that the Board bifurcates based on different theories.  Id.  They also noted “all theories of entitlement to benefits for a particular condition are part of the same claim”.  Id. at *5. 

The decision highlights an increasing occurrence where the VA bifurcates a claim based on the theory of liability.  While a lay person might see a remand as a victory, it could be the creation of a procedural trap that leads the layperson to allow his time to appeal to pass by.

Cline: Earlier Effective Dates and New Evidence

Phillip G. Cline v. Eric K. Shinseki, Opinion Number 10-3543, decided August 16, 2012 concerns an appeal for a higher rating and earlier effective date for PTSD.

The veteran first applied for service connection for PTSD in January 1993 and finally granted effective May 1999.  Between the initial application and granting, there were numerous denials, appeals and submissions of new evidence by the veteran.  Ultimately in July 2005 the Center for Unit Records responded to a VA request that corroborated the death of the veteran’s unit member (an alleged stressor), the veteran had submitted the friends full name in August 2003 and had previously mentioned the friend’s drowning in January 1993.  The veteran sought an effective date based on Section 3.156(c)(1) (which permits an effective date as of the original date of the claim where service department records later associated with the claims file form the basis of the ultimate award), but the Board denied saying under Section 3.156(c)(2) (which states the previous section does not apply where the claimants failed to provide sufficient information for the VA to identify and obtain records).  Essentially, the Board said the veteran had not provided sufficient information in January 1993 for the VA to attempt to verify his claim when it did not give the name of the drowned friend.

In reaching its decision, the Court gives a history of Section 3.56(c).  It noted the new section became effective October 2006 and operated to limit an effective date by saying the ability to look back to an earlier effective does not apply when the records did not exist at the time of the earlier application or because the veteran failed to provide sufficient information for VA to identify and obtain the records.  Importantly, they noted the limitation was not specifically made retroactive and found that despite the VA’s argument, it should not be applied retroactively. 

Thus, because the amended Section 3.56(c) was not in place, the veteran received the benefit of the more veteran friendly prior language.  Thus, the case was remanded with directions that would seem to support a grant of a January 1993 effective date (i.e., the date of the application and claim of a stressor of a friend drowning).

The veteran also sought a higher rating based on  low GAF scores of 40 and 45.  The veteran argued reasonable doubt should lead to a rating of 100% rather than 70%.  The Court noted GAF scores are probative but reiterated they are merely one piece of evidence.  The Court found “the Board extensively considered the record and expressly explained its determination that Mr. Cline’s disability picture ‘more nearly approximates’ a 70% rating.”

The decision shows how the amended Section 3.156(c) is not as favorable to veterans but also shows how a veteran with a claim in the right time space might avail himself of the older rule.

Decided by Judges Hagel, Lance and Davis.