Emerson: Earlier Effective Dates under 38 CFR 3.156(c)(3)

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.