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.