Thomas v. McDonough, Opinion Number 2022-1504, was decided March 27, 2024 by the Federal Circuit and involves an earlier effective date for the veteran’s PTSD and what happens when the Board simply does not address an issue raised by the veteran.
In 1961, the veteran was on a plane that crashed and he was one of the few survivors. He was discharged three years later after being diagnosed with an emotionally unstable personality. He submitted a claim to the VA in 1971 seeking service connection for “depressive mania” associated with the plane crash. “Based on solely the medical records, the VA denied service connection and concluded that an emotionally unstable personality was not a disability under the law. In reaching this decision, the VA did not consider Mr. Thomas’ service department records.” Id. at *2.
The veteran reapplied in 2014 and submitted service department records abou the plane crash as well as changes in his personality and performance evaluations after the crash. PTSD was granted with an effective date of the 2014 application. He sought an earlier effective date, but the “VA found that the service department records would not have changed the 1971 denial of service connection because they did not counter the determination that Mr. Thomas’ in-service psychiatric problems were due to an “emotionally unstable personality,” which was not considered a disability for VA compensation purposes. J.A. 99. The VA also concluded that the service department records “were not a factor in the grant of benefits at this time.”” Id. at *4.
The Board affirmed and did not address the 3.156(c) argument or the newly added service department records. Before the Veterans Court, the veteran argued the Board erred in not addressing his 3.156(c) argument. The Veterans Court affirmed finding: “the Board did not err in failing to discuss Section 3.156(c)(1) because this regulation only applies to “relevant” service records. The Veterans Court noted that Mr. Thomas “offer[ed] no argument that his service records were in any way relevant” to the VA’s denial of his 1971 claim. For this reason, the VA concluded that Mr. Thomas had not shown that the Board committed prejudicial error in failing to discuss Section 3.156(c)(1).” Id. at *5. “The Veterans Court also determined that the Board did not err in failing to discuss Mr. Thomas’ service department records. The Veterans Court explained that “Mr. Thomas has neither shown nor argued that the service department records . . . were ‘favorable’ evidence and that the Board was thus required to discuss them.” Id. at *5.
Before the Federal Circuit, the veteran argued: “Veterans Court erroneously applied a more stringent legal standard than what is required under 38 U.S.C. § 7104. Section 7104(d) governs the Board’s statutory duty to consider “applicable” regulations and provide a written statement on “all material issues of fact and law.” Specifically, Mr. Thomas argues that the Veterans Court improperly read into this provision a new and limiting requirement—that the Board need only address “favorable” or “relevant” evidence in its written decision.” Id. at *6.
The Federal Circuit explained the Board must include a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Id. at *6. It then explained “At the Veterans Court, this provision means that the Board must address in its written statement all regulations that are “made potentially applicable through the assertions and issues raised in the record.” Id. at *6. It then explained: “We see no reason to depart from the Veterans Court’s “potentially applicable” standard, which supports 38 U.S.C § 7104(d)’s goal of providing veterans with a fulsome and clear decision of their claims. In doing so, we are not eliminating or even modifying the Veterans Court’s obligation to place the burden of proof for showing prejudicial error on appeal on the appellant, as the Veterans Court here correctly did.” Id. at *6-7.
As to the facts of the case, the Federal Circuit then explained: the veteran raised Section 3.156(c) and his service records before the Board and it was not addressed and the Board did not address this issues, but the Veterans Court excused the failure because the veteran did not argue the “relevance” of Section 3.156(c) or the service department records in his brief. The Federal Circuit then noted the Veterans Court also faulted the veteran for failing to show how his service department records were favorable evidence and explained: “These statements indicate that the Veterans Court erroneously applied a standard considerably more stringent than required under 38 U.S.C. § 7104. As explained above, Section 7104 requires the Board to consider all “potentially applicable” regulations raised in the record, not merely those that the veteran has shown to be relevant or favorable in his briefing before the Board.” Id. at *7-8.
The Federal Circuit then explained: “the Board never made a finding of fact as to the relevancy of Mr. Thomas’ service department records to his denied 1971 claim, as required under Section 3.156(c) and Kisor II. Because the Board has not made this factual determination in the first instance, the Veterans Court is statutorily prohibited from doing so.” Id. at *8.
This is an important case that demonstrates the Board must address arguments and issues raised by the veteran, but it also provides a way to attack an argument at the Veterans Court that error is harmless. It says underlying decision of relevancy (at least in this case) must be made by the Board and not the Veterans Court.
Opinion by Judge Reyna and joined in by Judges Lourie and Cunningham.
To know more about whether Thomas Andrews can help you, please visit my website.
No comments:
Post a Comment