George: CUE and 3.156(c)

George v. Wilkie, Case Number 16-1221, decided March 26, 2020 discusses the intersection of a CUE claim and Section 3.156(c)(newly discovered service records). 

Due to the high procedural barrier created by CUE, the Court affirmed the Board’s denial of an earlier effective date. 

The story of this claim is familiar to advocates in this field.  A veteran seeks service connected for PTSD but is denied for lack of a stressor.  The veteran reapplies and they ultimately find proof of the stressor in military records, here in research by the Joint Service Records Research Center, and grant PTSD with the second or third application date as the effective date.

However, 38 C.F.R. Section 3.156(c) seems to apply and requires:

at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.

Id. at *6.

Here, the veteran argued

the Board did not "reconsider" his PTSD claim with the new service department records under § 3.156(c)(1), but, instead, only reviewed the proper effective date under subsection (c)(3).  According to appellant, the "finality of the VA's original [(1997)] denial has been undone" by the receipt of new service treatment records, and, because the RO never engaged in a full readjudication of the matter, the Board erred when it found no CUE.  He further contends that VA's action, which he referred to at oral argument as a "partial readjudication" on the issue of effective date only, did not put him in the position he would have been in had the relevant service department records been considered part of his original (1997) claim.  Specifically, he suggests that a full readjudication would have triggered the duty to assist, requiring VA to develop his claims based on his lay testimony of certain in-service symptoms and to decide whether these symptoms showed a manifestation of PTSD before 2003.

Id. at *7.

The Court found the Board’s finding of no CUE in the 2014 Board decision concerning lay statements was not arbitrary, capricious, an abuse or discretion or otherwise not in accordance with the law.  Id. at *10.  The Court noted a duty to assist error cannot be CUE and noted the VA did seek a retrospective VA opinion that said the PTSD did not develop until later.  Id. at *10-11.  “In sum, the Court concludes that appellant has not carried his burden of demonstrating that the 2015 Board's denial of his motion to revise the 2014 Board decision on this basis of CUE as it concerns assessing his lay statements was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Id. at *11. 

The Court then assessed a broader argument about Section 3.156(c) and stated:

One can view this argument two ways, and this seemingly abstract issue turns out to have significant jurisdictional implications.  First, it is possible to read appellant's argument about § 3.156(c) and reconsideration generally as focused on the 2015 Board decision.  In this view, appellant essentially argues that the 2015 Board misunderstood how § 3.156(c) operates and, therefore, he calls into question the 2015 Board's assessment of whether the 2014 Board decision contained CUE.  Second, one can view appellant's argument as alleging that the 2014 Board decision contained CUE because it misapplied § 3.156(c) in terms of what type of reconsideration was necessary.  As we explain, we lack jurisdiction over this second argument.  However, we possess jurisdiction to consider the first version of appellant's argument, but we reject it on the merits.

Id. at *11.

First, as to reconsideration:  the Court notes based on Vigil v. Peake “we know

without question that § 3.156(c) speaks to more than effective date; it also speaks to development of the claim in at least some respect.” It then held:

We hold that the Board in its 2015 decision applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision concerning the three specific allegations of CUE appellant advanced in his August 2015 motion to revise the 2014 Board decision. The 2015 Board specifically explained that, given the receipt of service department records not previously associated with the claim, § 3.156(c) was applicable and reconsideration needed.  And the 2015 Board noted that the earliest entitlement to benefits would be based on the original 1997 claim.  Appellant argues that, when discussing an effective date, the Board skipped past § 3.156(c)(1), which demands reconsideration of the original claim, and went straight to § 3.156(c)(3), which deals with the effective date of a claim granted via reconsideration.  If the Board had acted as appellant suggests, it did not understand the relevant legal framework, which could cast doubt on its assessment of the specific CUE allegations before it.  However, it is clear that the 2015 Board did not fall victim to this mistake.  The 2015 Board addressed at length the various steps taken after VA received the service department records, namely obtaining a retrospective medical examination in April 2013 and considering other evidence such as Social Security Administration records and lay statements.  This type of discussion makes sense only in the context of reconsidering a claim, suggesting that the Board understood how § 3.156(c) operates.

Similarly, after acknowledging that § 3.156(c) applied, the 2015 Board explicitly stated that "it was necessary for the Board [in 2014] to determine when [appellant's] entitlement to service connection for PTSD arose."….  Therefore, the evidence, taken as a whole, shows that when assessing the 2014 decision, the 2015 Board properly understood and considered the provisions of § 3.156(c).

Id. at *13-14.

The Court also noted the veteran’s brief also seemed to argue the earlier Board decision contained CUE because it misapplied Section 3.156(c) and did not properly reconsider the claim.  The Court rejected this argument as it had not been raised by the Appellant before the Board. 

Judge Greenberg dissented arguing equity compelled a different result, “I believe that the examiner's opinion would have been different if he had reviewed the records that eventually led to the grant of service connection. The complicated procedural requirements to disturb the finality of VA decisions has gotten in the way

of compensating this worthy veteran.”  Id. at *15.

This is an interesting decision that shows the procedural difficulty in bringing a CUE claim, especially as it intersects with Section 3.156(c) and reveals how difficult such a claim is to win.  It should be pointed out this decision has been appealed to the Federal Circuit, so we shall see the result.

Decision by Judge Allen and joined in by Judge Schoelen.  Dissent by Judge Greenberg.

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