Gudinas: Effective Dates and What Does a Claim Encompass

Gudinas v. McDonough, Opinion Number 19-2640, was decided April 16, 2021 and involves an effective date for PTSD.

The Court well summarized the veteran’s argument as:

The main premise of the appellant's appeal is that once service connection has been established for a disability, "any claim for additional service[-]connected compensation in the form of an increased schedular rating, increased rating based on unemployability, or . . . secondary service[-]connected compensation, is part and parcel of the same claim stream." Appellant's Br. at 4. In making this argument, the appellant maintains that regardless of whether the claim is framed or presented as a claim for increased schedular rating, increased rating based on unemployability, or secondary service-connected compensation, "the purpose of all these claims is to increase the amount of compensation payable for the veteran's service[-]connected injury."

Id. at *4.

The Court noted:

At issue here is a related provision, which was applicable to pending claims and provided as follows: "New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b) (effective to February 19, 2019).

Id. at *8.

The Court turned to the facts and whether a claim for secondary service connection constitutes a claim for increased compensation related to the already service connected primary condition and whether the secondary claim is therefore part and parcel to the same claim.  The Court rejected this argument.  Id. at *11-13. It found, “The law is clear that claims for secondary service connection are not claims for increased compensation and are not part and parcel of a claim for increased compensation for the primary condition.”  Id. at *16.

It further explained: 

Pursuant to Manzanares and Ross, a claim for secondary service connection is not part of every claim for service connection for the primary disability or for an increase in the primary disability, nor is it a claim for increased compensation. See Manzanares, 863 F.3d at 1379 (concluding that a claim for secondary service connection was not part of a pending claim for an increased rating of the primary condition and thus was not entitled to the same effective date as the primary condition); Ross, 21 Vet.App. at 532 (holding that an award of secondary service connection is not an award of increased compensation because it requires the incurrence of an additional disability).

Id. at *17.

Judge Greenberg wrote a dissent where he argued:

As the majority clearly and excellently explains, the appellant argues that the Federal Circuit's rulings in Bond and Beraud required the Board to assess, per 38 C.F.R. § 3.156(c)'s "new and material evidence" requirement, the evidence received in October 2015 as it related to the open and pending May 2014 claim for sleep apnea. See Appellant's Br. at 7-9; see also infra section II. The appellant next argues that once the Court made the threshold determination that § 3.156(c) applied, the Court should expand its holding in Rice by finding that the October 2015 submissions were "part and parcel" of the May 2014 claim, which impliedly encompassed a secondary-serviceconnection claim, increased disability rating for PTSD claim, and the matter of TDIU. See infra section II. See Appellant's Br. at 4-9; see also Oral Argument at 2:28–2:45, Gudinas v. Wlkie, U.S. Vet. App. No. 19-2640 (oral argument held Jan. 22, 2021), https://youtu.be/tNDRzKSlllg (last visited Mar. 18, 2021). Though the Secretary and majority found these arguments unavailing, I believe these arguments warranted a different outcome.

Id. at *21.

This case was a novel attempt to force the VA and Court to treat a claim for disability benefits to trigger a claim for all possible benefits.  However, it is clear the Court is not willing to go so far on behalf of veterans.

Opinion by Judge Pietsch and joined in by Judge Meredith.  A dissent by Judge Greenberg.

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