964 F.3d 1374
Fed. Cir.2020Background
- Thomas Jones served active duty 1967–1974 and in the National Guard 1987–1990; he filed for VA disability in 1994 for a nervous disorder and a right-leg wound; the 1994 RO denied the nervous-disorder claim and awarded a non‑compensable right-leg scar.
- Jones sought to reopen in October 2002, asserting PTSD from a 1968 assault; the RO denied reopening for lack of an in‑service stressor and because some evidence was not new and material.
- Additional active‑duty records were obtained in 2006; the Board reopened and remanded the claim in 2008 for further development; the RO granted service connection for PTSD and related disorder in 2010 with an effective date of October 7, 2002 (date of reopening).
- Appellant (widow Florence Jones, substituted after Jones’s 2014 death) sought an effective date of June 7, 1994 (original claim date), arguing that subsequently associated service records (Feb. 1971 treatment record and Mar. 1987 Guard report) triggered § 3.156(c)(3)’s retroactive effective‑date rule.
- The Board found those service records did not provide the basis for the later grant; the Veterans Court affirmed, concluding the award was not based on the newly associated records and that the effective date properly remained Oct. 7, 2002.
- The Federal Circuit affirmed, holding the Veterans Court did not misinterpret 38 C.F.R. § 3.156(c) and lacked jurisdiction to review the Veterans Court’s harmless‑error determination about a Board verbal misstatement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA ‘‘reconsidered’’ the 1994 decision under 38 C.F.R. § 3.156(c)(1) after associating service department records | Jones: VA failed to ‘‘reconsider’’ because it was unclear whether official service records had been in VA possession at the original decision | Wilkie: VA did reconsider by associating the relevant records and reassessing the claim during remand and reopening | Held: VA satisfied § 3.156(c)(1); record shows VA reconsidered the claim when it associated the records and developed the claim on remand |
| Whether § 3.156(c)(3) requires that newly associated service records be the basis for both reopening and the eventual award to obtain a retroactive effective date | Jones: § 3.156(c)(3) requires only that the award be based in part on the records identified by (c)(1); reopening and award need not both be based on those records | Wilkie: The governed inquiry is whether the award was based in whole or in part on the newly associated records; reopening alone does not entitle retroactivity unless award relied on them | Held: The court affirmed that § 3.156(c)(3) requires the award to be based in whole or part on the newly associated records; it need not be the reason for reopening, and here the award was not based on those records |
| Whether the Board’s verbal misstatement (saying records did not serve as basis for reopening rather than for the award) was reversible error | Jones: The Board misstated the legal test and applied the wrong standard, making the error one of law subject to review | Wilkie: The misstatement was harmless because the Board applied the correct legal standard in its analysis of whether the award was based on the records | Held: The misstatement was harmless; the Board and Veterans Court applied the proper legal standard in substance; Federal Circuit lacks jurisdiction to revisit certain harmless‑error factual/apply‑law‑to‑fact determinations |
| Whether the effective date should be June 7, 1994 (original claim) rather than Oct. 7, 2002 (reopening) | Jones: Retroactive effective date is warranted because relevant service records were associated after the initial decision and would have affected the earlier disposition under § 3.156(c)(3) | Wilkie: Retroactivity applies only if the award was based in whole or in part on those records; here the award was based on later, post‑1994 evidence | Held: Effective date properly set as Oct. 7, 2002 because the award was not based on the newly associated pre‑1994 service records |
Key Cases Cited
- Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir. 2014) (explaining § 3.156(c) ‘‘reconsideration’’ corrects administrative error and can place veteran in position had VA considered records earlier)
- Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007) (limits Federal Circuit review of Veterans Court decisions that apply law to fact)
- Pitts v. Shinseki, 700 F.3d 1279 (Fed. Cir. 2012) (same jurisdictional limitation on review of Veterans Court factual/apply‑law‑to‑fact rulings)
- George v. Shulkin, 29 Vet. App. 199 (Vet. App. 2018) (describing reconsideration under § 3.156(c) as requiring reassessment of the original decision and potential additional development)