Bond v. SHINSEKI
2011 U.S. App. LEXIS 20416
| Fed. Cir. | 2011Background
- Bond served in the Marine Corps (1965–1968) and filed a PTSD claim in 1996 later granted at 30% (May 1997, effective Oct 8, 1996).
- Bond submitted a Feb 1998 communication requesting an increased PTSD rating, with supporting medical records; RO treated it as a new claim for increased rating in July 1998.
- Bond pursued appeals; RO denied increased rating in 1998 and 1999; subsequent transitional submissions led to a 2000 RO decision increasing PTSD to 70% and awarding TDIU, effective July 7, 1999.
- Board’s 2004 decision addressed both the earlier effective date for the 70% rating and TDIU; it held May 7, 1997 as the earliest for the 70% rating and denied earlier TDIU.
- Veterans Court remanded in 2007 to consider whether Bond’s Feb 1998 submission could have raised an informal TDIU claim; on remand, the Board treated it as an informal TDIU claim with Feb 11, 1998 as the effective date.
- Bond appealed the Feb 11, 1998 TDIU date; the Veterans Court held no new and material-evidence issue under §3.156(b) but remanded for further §3.156(b) analysis; this appeal questions that interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3.156(b) requires evaluating whether evidence submitted during the appeal period is new and material to a pending claim before considering if it constitutes a new claim. | Bond: VA must assess new/material status before treating as new claim. | Shinseki: evidence can be treated as a new claim even if it might also be new/material for pending claim. | Legal requirement: VA must assess both aspects; error by Veterans Court |
| Whether the VA fulfilled § 3.156(b) by treating Bond's February 1998 submission as a new claim without determining its new/material status for the old claim. | Bond: VA failed to determine if it also contained new/material evidence for the October 1996 claim. | Shinseki: RO implicitly determined; not clearly shown in record. | Remand to determine if Feb 1998 submission contained new/material evidence relating to the old claim |
| Does the regulation permit treating evidence as both a basis for a new claim and as new/material evidence for an earlier claim? | Bond: it can, and VA must evaluate both paths. | Shinseki: not necessary to evaluate both if not indicated by record. | Court adopts dual-evaluation requirement; VA must assess both paths |
| Was the Veterans Court proper to apply res judicata to bar relitigation of the § 3.156(b) issue? | Bond: issue not barred as the February 1998 submission could relate to an earlier claim. | Shinseki: res judicata applied to preclude relitigation of that precise issue. | Not dispositive to this ruling; focus is on § 3.156(b) interpretation; remand on correct analysis |
| What is the proper remedy on remand for § 3.156(b) evaluation? | Bond: court should require reconsideration consistent with § 3.156(b). | Shinseki: no position beyond requiring correct analysis on remand. | Remand for proper § 3.156(b) analysis |
Key Cases Cited
- Muehl v. West, 13 Vet.App. 159 (1999) (new/material evidence and finality under § 3.156(b))
- Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005) (regulatory applicability of § 3.156(b))
- Young v. Shinseki, 22 Vet.App. 461 (Ct. Vet.App. 2009) (Board must discuss § 3.156(b) in its decision)
- Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (jurisdiction to review Veterans Court decisions)