Odis C. Stowers v. Eric K. Shinseki
26 Vet. App. 550
Vet. App.2014Background
- Stowers served in the U.S. Air Force from March 1979 to May 1992.
- May 1993 RO denial denied service connection for a back condition; the claim became final.
- February 2008 a request to reopen was filed for a low back disability.
- April 2008 private physician Dr. Hunter linked degenerative lumbosacral changes to in-service injuries after reviewing military records.
- December 2008 RO reopened, granted service connection for degenerative lumbar spine arthritis with a 20% rating, effective February 19, 2008.
- September 2012 Board denied an earlier effective date; Court set aside for remand to address VA’s duty to obtain records and the potential application of 38 C.F.R. § 3.156(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA’s duty to assist requires obtaining new or identified service records under § 3.156(c). | Stowers argues the Board failed to consider newly associated SMRs that could affect the date entitlement arose. | Secretary contends § 3.156(c) not implicated because relied on medical nexus and existing record. | Remand needed to address § 3.156(c) applicability and potential relevance of newly identified SMRs. |
| Whether the Board adequately explained why VA did not identify or obtain potentially relevant SMRs not previously of record. | Stowers contends the Board failed to discuss SMRs Dr. Hunter relied on that were not in the record at first decision. | Secretary argues duty to assist satisfied since there was no identified further evidence relevant to the current issue. | Board failure to address potentially relevant SMRs requires remand. |
| Whether the Board erred in failing to reconsider the effective date under § 3.156(c) based on newly associated service records. | Stowers seeks earliest possible date if § 3.156(c) applies due to newly discovered service records. | § 3.156(c) not triggered because new records were not associated with the claim at the time of the initial decision. | Remand to determine applicability of § 3.156(c) and adjust effective date if warranted. |
Key Cases Cited
- Lalonde v. West, 12 Vet.App. 377 (1999) (effective date rules for reopened claims and earliest date concerned with 3.156(c))
- Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003) (establishes rule that effective date is the later of reopening receipt or entitlement arise)
- Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (duty to assist includes obtaining potentially relevant records)
- Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (integral part of duty to assist is obtaining service records)
- McGee v. Peake, 511 F.3d 1352 (Fed. Cir. 2008) (service records may be relevant to earlier effective date)
- Mayhue v. Shinseki, 24 Vet.App. 273 (2011) (claims reconsideration may relate to § 3.156(c))
- Vigil v. Peake, 22 Vet.App. 63 (2008) (original claim can be reconsidered when new service records arise)
- Shipley v. Shinseki, 24 Vet.App. 458 (2011) (remand for factual findings under § 3.156(c))
- Tucker v. West, 11 Vet.App. 369 (1998) (remand appropriate when law applied incorrectly)
- Caluza v. Brown, 7 Vet.App. 498 (1995) (requirements for Board to provide reasons or bases)
- Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (reasoned decision must enable review)