Ortiz v. McDonough
6f4th1267
| Fed. Cir. | 2021Background:
- Ortiz filed for PTSD service-connection in 1997; VA denied the claim for lack of corroborating evidence of an in-service stressor and that denial became final.
- In 2010 VA amended 38 C.F.R. § 3.304(f) by adding § 3.304(f)(3), which (when specified preconditions are met) permits a veteran’s lay testimony alone to establish occurrence of an in-service stressor unless there is clear and convincing contrary evidence.
- Ortiz moved to reopen on May 22, 2012 (after the amendment’s July 2010 effective date); VA reopened, granted service connection, and assigned a 100% rating, with an effective date of May 22, 2012 (date of reopening request).
- Ortiz argued the award was made “pursuant to” a liberalizing VA issue and sought an earlier effective date—May 22, 2011—under 38 C.F.R. § 3.114(a)(3)/38 U.S.C. § 5110(g).
- The Board and Veterans Court held § 3.304(f)(3) was not a "liberalizing" change; the Federal Circuit reversed, holding the 2010 amendment was liberalizing and entitling Ortiz to the earlier effective date.
Issues:
| Issue | Ortiz's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Whether the 2010 addition of § 3.304(f)(3) is a "liberalizing" law/VA issue under 38 C.F.R. § 3.114(a) entitling Ortiz to an effective date one year before his reopening request | § 3.304(f)(3) relaxed the veteran’s affirmative evidentiary burden (eliminated corroboration), so it is liberalizing and triggers the one-year earlier effective date | Spencer and Routen control: the change is procedural or does not create a new basis of entitlement and thus is not "liberalizing" for effective-date purposes | The amendment is liberalizing: it eliminated a substantive corroboration requirement (akin to creating a presumption), so Ortiz gets the May 22, 2011 effective date (one year prior to reopening request). |
Key Cases Cited
- Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994) (discusses when intervening legal changes create a new basis of entitlement permitting de novo claims)
- Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998) (holds certain procedural regulatory changes do not create a new basis for entitlement)
- Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003) (effective-date and reopened-claim principles for veterans benefits)
- Hall v. Shinseki, 717 F.3d 1369 (Fed. Cir. 2013) (describes § 3.304(f)(3) as granting an exception to the normal evidentiary burden)
- Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (addresses VA authority to set PTSD evidentiary rules)