Kisor v. Shulkin

• Decision Date: 07 September 2017
• Docket Number: 2016-1929
• Parties: James L. KISOR, Claimant-Appellant v. David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

869 F.3d 1360

James L. KISOR, Claimant-Appellant

v.David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee

2016-1929

United States Court of Appeals, Federal Circuit.

Decided: September 7, 2017

Kenneth M. Carpenter , Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

Igor Helman , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Martin F. Hockey, Jr. ; Y. Ken Lee, Samantha Ann Syverson , United States Department of Veterans Affairs, Washington, DC.

Before Reyna, Schall, and Wallach, Circuit Judges.

Schall, Circuit Judge.

James L. Kisor, a veteran, appeals the January 27, 2016 decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") in Kisor v. McDonald , No. 14-2811, 2016 WL 337517 (Vet. App. Jan. 27, 2016). In that decision, the Veterans Court affirmed the April 29, 2014 decision of the Board of Veterans' Appeals ("Board") denying Mr. Kisor entitlement to an effective date earlier than June 5, 2006, for the grant of service connection for his post-traumatic stress disorder ("PTSD"). Kisor , 2016 WL 337517, at *1. We affirm.

BACKGROUND

I.

The pertinent facts are as follows: Mr. Kisor served on active duty in the Marine Corps from 1962 to 1966. Id. In December of 1982, he filed an initial claim for disability compensation benefits for PTSD with the Department of Veterans Affairs ("VA") Regional Office ("RO") in Portland, Oregon. Id. Subsequently, in connection with that claim, the RO received a February 1983 letter from David E. Collier, a counselor at the Portland Vet Center. J.A. 17. In his letter, Mr. Collier stated: "[I]nvolvement in group and individual counseling identified ... concerns that Mr. Kisor had towards depression, suicidal thoughts, and social withdraw[a]l. This symptomatic pattern has been associated with the diagnosis of Post-Traumatic Stress Disorder (DSM III 309.81)." Id.

In March of 1983, the RO obtained a psychiatric examination for Mr. Kisor. In his report, the examiner noted that Mr. Kisor had served in Vietnam; that he had participated in "Operation Harvest Moon"¹ ; that he was on a search operation when his company came under attack; that he reported several contacts with snipers and occasional mortar rounds fired into his base of operation; and that he "was involved in one major ambush which resulted in 13 deaths in a large company." J.A. 19–20. The examiner did not diagnose Mr. Kisor as suffering from PTSD, however. Rather, it was the examiner's "distinct impression" that Mr. Kisor suffered from "a personality disorder as opposed to PTSD." J.A. 21. The examiner diagnosed Mr. Kisor with intermittent explosive disorder and atypical personality disorder. Id. Such conditions cannot be a basis for service connection. See 38 C.F.R. § 4.127.² Given the lack of a current diagnosis of PTSD, the RO denied Mr. Kisor's claim in May of 1983. J.A. 23. The RO decision became final after Mr. Kisor initiated, but then failed to perfect, an appeal. Kisor , 2016 WL 337517, at *1.

II.

On June 5, 2006, Mr. Kisor submitted a request to reopen his previously denied claim for service connection for PTSD. J.A. 25. While his request was pending, he presented evidence to the RO. This evidence included a July 20, 2007 report of a psychiatric evaluation diagnosing PTSD. See J.A. 100–11. It also included a copy of Mr. Kisor's Department of Defense Form 214, a Combat History, Expeditions, and Awards Record documenting his participation in Operation Harvest Moon, and a copy of the February 1983 letter from the Portland Vet Center. See J.A. 16–17, 27–28. In September of 2007, a VA examiner diagnosed Mr. Kisor with PTSD. J.A. 115. The RO subsequently made a Formal Finding of Information Required to Document the Claimed Stressor based on Mr. Kisor's statements, his service medical records (which verified his service in Vietnam with the 2nd Battalion, 7th Marines), and a daily log from his unit, which detailed the combat events Mr. Kisor had described in connection with his claim. J.A. 30.

In due course, the RO issued a rating decision reopening Mr. Kisor's previously denied claim. The decision granted Mr. Kisor service connection for PTSD and assigned a 50 percent disability rating, effective June 5, 2006.³ Kisor , 2016 WL 337517, at *1. According to the decision, the rating was based upon evidence that included the July 2007 psychiatric evaluation report diagnosing PTSD, the September 2007 VA examination, and the Formal Finding of Information Required to Document the Claimed Stressor. J.A. 32–33. The RO explained that service connection was warranted because the VA examination showed that Mr. Kisor was diagnosed with PTSD due to experiences that occurred in Vietnam and because the record showed that he was "a combat veteran (Combat Action Ribbon recipient)." J.A. 33.

In November of 2007, Mr. Kisor filed a Notice of Disagreement. In it, he challenged both the 50 percent disability rating and the effective date assigned by the RO. Kisor , 2016 WL 337517, at *1. Subsequently, in March of 2009, the RO issued a decision increasing Mr. Kisor's schedular rating to 70 percent. In addition, the RO granted a 100 percent rating on an extraschedular basis, effective June 5, 2006.⁴ J.A. 41–45. In January of 2010, the RO issued a Statement of the Case denying entitlement to an earlier effective date for the grant of service connection for PTSD. See J.A. 53–65.

III.

Mr. Kisor appealed to the Board. Before the Board, he contended that he was entitled to an effective date earlier than June 5, 2006 for the grant of service connection for PTSD. Specifically, he argued that the proper effective date for his claim was the date of his initial claim for disability compensation that was denied in May of 1983. See J.A. 47–48. In support, Mr. Kisor alleged clear and unmistakable error (CUE) in the May 1983 rating decision; he also alleged various duty-to-assist failures on the part of the VA. See J.A. 47–48, 84–87.

The Board rejected these arguments. It ruled that the duty to assist had not been violated, that Mr. Kisor had failed to establish CUE, and that the RO's May 1983 rating decision became final when Mr. Kisor failed to perfect his appeal of the decision. See J.A. 85–88. The Board found no reason to upset the finality of the May 1983 decision because "[t]he remedy available to the Veteran was to appeal," but he did not do so. J.A. 86.

The Board, however, raised "another way to challenge the May 1983 rating decision" that had not been advanced by Mr. Kisor. J.A. 88. That way turned on whether Mr. Kisor was eligible for an earlier effective date for his service connection under the regulation set forth at 38 C.F.R. § 3.156(c). In contrast to 38 C.F.R. § 3.156(a), which only permits claims to be reopened on the submission of "new and material" evidence, § 3.156(c) allows claims to be reconsidered if certain conditions are met. See 38 C.F.R. § 3.156(c)(1) (noting that § 3.156(c) applies "notwithstanding paragraph (a)").

Subsection 3.156(c) includes two parts relevant to this appeal. First , paragraph (c)(1) defines the circumstances under which the VA must reconsider a veteran's claim for benefits based on newly-associated service department records:

[A]t any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim....

38 C.F.R. § 3.156(c)(1). Second , paragraph (c)(3) establishes the effective date for any benefits granted as a result of reconsideration under paragraph (c)(1):

An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date the VA received the previously decided claim, whichever is later,....

38 C.F.R. § 3.156(c)(3).

Section 3.156(c) thus provides for an effective date for claims that are reconsidered that is different from the effective date for claims that are reopened. As we pointed out in Blubaugh v. McDonald , "[i]n contrast to the general rule, § 3.156(c) requires the VA to reconsider a veteran's claim when relevant service department records are newly associated with the veteran's claims file, whether or not they are ‘new and material’ under § 3.156(a)." 773 F.3d 1310, 1313 (Fed. Cir. 2014) (citing New and Material Evidence, 70 Fed. Reg. 35,388, 35,388 (June 20, 2005) ). "In other words," we observed, " § 3.156(c) serves to place a veteran in the position he would have been in had the VA considered the relevant service department record before the disposition of his earlier claim." Id.

Applying the regulation, the Board considered whether the material Mr. Kisor submitted in connection with his June 2006 request to reopen warranted reconsideration of his claim.⁵ If it did, then Mr. Kisor would have been eligible for an effective date of December of 1982 for his disability benefits, "the date the VA received the previously decided claim." 38 C.F.R. § 3.156(c)(3).

After reviewing the evidence, the Board denied Mr. Kisor entitlement to an effective date earlier than June 5, 2006. J.A. 91. The Board found that the VA did receive service department records documenting Mr. Kisor's participation in Operation Harvest Moon after the May 1983 rating decision. J.A. 89–90. The Board concluded, though, that the records were not "relevant" for purposes of § 3.156(c)(1). J.A. 90. The Board explained that the 1983 rating decision denied service connection because there was no diagnosis of PTSD, and because service connection can be granted only if there is a current disability.⁶ Id. (citing Brammer v. Derwinski , 3 Vet.App. 223 (1992) ). The Board stated that "relevant evidence, whether service department records or otherwise, received after the...