Foreman v. Shulkin, Case Number 15-3463, decided January
22, 2018 considers the application of 38 CFR sections 3.304 and 3.114 and
whether they restrict the application of an earlier effective date for PTSD.
The veteran applied for compensation in 1972 and service
medical records submitted with the application addressed a nervous condition,
but he did not specify service connection for PTSD or any other medical
condition. In 2008, the veteran sought
service connection for PTSD which the VAMC had diagnosed by 2005. While the 2008 claim was pending, the VA
amended 38 CFR 3.304(f). The amendment
eliminated the requirement for corroborative evidence of a stressor where a VA
mental health expert has diagnosed PTSD and the stressor is related to the
veteran’s fear of hostile military or terrorist activity.
After an initial denial, the VA ultimately granted a 50%
PTSD rating with an effective date of March 2011 (the date of the examination). Nearly 3 years later, the Board issued a
decision granting an effective date of July 2010, which is the date of the
amendment to 38 CFR 3.304(f). The Board
reasoned the amendment was a liberalizing rule and the grant of PTSD was made
pursuant to the liberalizing rule. They
then noted Section 3.114 provides when benefits are awarded due to a
liberalizing change in law, the effective date will not be earlier than the
date of the law’s change.
The VA ultimately conceded and: “[t]he Court holds that the
July 13, 2010, amendment to § 3.304(f) is not a liberalizing rule for the
purposes of § 3.114 and that Mr. Foreman is therefore not precluded from
receiving an effective date prior to July 13, 2010, for the award of service
connection for PTSD.”
The case is interesting in that the veteran was not
represented but an attorney appeared as amicus curiae. Initially, the VA insisted 3.304 and 3.114
interact to prevent an earlier effective date than July 2010, but when an
attorney’s brief argued counter than argument, the VA backed down and
essentially conceded 3.304 was not a liberalizing rule. Id. at *5.
After finding the rule was not a liberalizing one, the Court
concluded
Because the July 2010 amendment to §
3.304(f) is not liberalizing for effective date
purposes, § 3.114 does not govern the
effective date of benefits in this case. The Board thus prejudicially erred as a matter
of law by applying § 3.114 to restrict Mr. Foreman from receiving an effective
date earlier than July 13, 2010, instead of applying section 5110(a) and §
3.400, which allow for an effective date at least as early as the date of
receipt of his claim for benefits.
Id. at *8.
The Secretary had also argued the Court should assign the
date of application (September 2008) for PTSD as the effective date. Id. at *8.
The Court noted the veteran sought an even earlier effective date and
that generally the Court should not engage in fact finding. It then, remanded the case to the Board for
determination of the proper effective date.
Id. at *10.
C.J. Davis wrote dissenting in part. While agreeing with the reasoning that Section
3.304(f) was not a liberalizing rule, he would have applied an effective date of
September 2008, the date of application for benefits for PTSD. This is an interesting dissent. At one level it supports the VA’s position.
But, it also shows a willingness to delve into a matter for the first time in
an attempt to put to an end to unnecessary delays. It evidences a certain willingness to go
further and reach decisions that could end delays. Some have argued for this authority for the
Court (the ability to decide some limited factual matters) in an attempt to try
to stop the hamster wheel of VA claims whereas how to circumscribe such
authority and where it might lead is an interesting question.
Decision by Judge Bartley and joined in by Judge
Pietsch. Chief Judge Davis concurring
and dissenting in part.
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