Dale R. Shipley v. Eric K. Shinseki
24 Vet. App. 458
Vet. App.2011Background
- Shipley appeals a Board decision (Dec. 3, 2008) denying an effective date earlier than Nov. 20, 2002 for service-connected PTSD.
- Board held Shipley did not have a pending, unadjudicated PTSD claim when he filed to reopen on Nov. 20, 2002.
- Shipley served in the U.S. Army during 1965–1969, including service in Vietnam as a cook; corrected DD-214 later showed a Presidential Unit Citation (PUC).
- PTSD first appeared in a 1995 VA examination; multiple service-connection claims, including PTSD, were deferred or denied in 1995–1996.
- In 2002, Shipley sought to reopen; in 2005, VA granted PTSD based on corrected DD-214 and a PUC-related stressor, effective Nov. 20, 2002.
- The Court affirmed the Board on the lack of a pending claim as to an earlier date but vacated and remanded regarding whether § 3.156(c) supports an earlier effective date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a pending, unadjudicated PTSD claim when Shipley reopened on Nov. 20, 2002. | Shipley contends his Oct. 1995 NOD kept PTSD alive pending final adjudication. | Secretary argues a deferred rating decision cannot establish appellate status or an NOD. | Claim not pending before 11/20/2002; affirmed. |
| Whether § 3.156(c) applies to permit an earlier effective date for PTSD. | Shipley argues § 3.156(c) should allow earlier date based on newly associated service records. | Secretary contends § 3.156(c) is not applicable or only applies to corrected records post-2006. | Remand to evaluate § 3.156(c) applicability; potential entitlement to earlier date. |
| Whether the Board erred by not addressing Mayhue v. Shinseki or related § 3.156(c) considerations. | Shipley argues the Board failed to discuss § 3.156(c) implications. | Secretary maintains Mayhue is not controlling here and records were not service department records. | Undisputed that § 3.156(c) applies; remand for Board to address it. |
Key Cases Cited
- Beyrle v. Brown, 9 Vet.App. 24 (1996) (NOD initiation and de novo review standards)
- Juarez v. Peake, 21 Vet.App. 537 (2008) (NODs cannot resolve an appeal when decisions are remanded)
- Tablazon v. Brown, 8 Vet.App. 359 (1995) (NODs and finality; deferral does not finalize RO decision)
- DiCarlo v. Nicholson, 20 Vet.App. 52 (2006) (remedies for delay in processing pending claims)
- Mayhue v. Shinseki, 24 Vet.App. 273 (2011) (3.156(c) applicability where service records verify stressor despite prior denial)
- Robinson v. Peake, 21 Vet.App. 545 (2010) (Board to consider all theories of entitlement; need to address applicable regs)
- Hensley v. West, 212 F.3d 1255 (2000) (remand as remedy when factual development needed)
- Gutierrez v. Principi, 19 Vet.App. 1 (2004) (reversal when only permissible view contradicts Board)