Emerson v. McDonald, Opinion Number 14-2968, decided August
210, 2016 involves a claim for an earlier effective date after inclusion of
service records pursuant to 38 CFR 3.156(c)(3).
The veteran was denied servicec connection for PTSD in 2003
based on a lack of proof of a stressor. Service
connection was subsequently granted in 2011 after the requirement of proof of a
stressor for combat related situations was relaxed.
The veteran appealed the effective date and noted he
submitted military personnel records after 2003 that purported to show he was
onboard a helicopter during combat flight missions in Vietnam. He argued 3.156(c)(3) applied due to the fact
he submitted relevant service records that were not associated with this file
at the time of the denial in 2003 and required the VA to reconsider his
original claim. The Board denied an
earlier effective date and the VA argued he was not entitled to consideration
under 3.156(c)(3) due to the intervening grant of service connection in
2011.
The Court reversed and found that the intervening grant of service
connection did not prohibit the application of 3.156(c)(3). The Court stated if the following criteria
are met, the VA must reconsider the original claim: (1) receipt of relevant service
records which existed and had not been associated with the file at the time of
the original decision, and (2) receipt “at any time after VA issues a decision
on a claim.” The Court also strongly
suggested that unlike a CUE claim, the law existing now should inform the
decision looking back to see if 3.156(c)(3) applied. The Court also framed the issue on remand as
whether the newly associated records are “at least partially decisive” as to an
award.
The VA had argued the Court should not consider this issue
as it was raised in a conclusory manner before the Board. The Court rejected this argument and stated
under the law the argument did not need to be as fully developed as it was
before the Court. The Court also noted the
Board did not even consider 3.156, but rather than remanding, noted it was a
legal issue and relevant facts are not in dispute. Finally, the veteran was granted a reasons
and bases remand for a higher rating for PTSD.
This is an important decision as the VA apparently hoped to
foreclose the use of 3.156 to gain an earlier effective date for combat
veterans suffering from PTSD. This
decision makes clear those veterans can still pursue an earlier effective date
under 3.156 in the event newly associated service records are found even if
they have subsequently been granted service connection.
Decided by Judge Bartley, joined by Chief Judge Hagel and
Judge Pietsch.
