Sansbury v. McDonough
| Decision Date | 11 April 2022 |
| Docket Number | 20-8639 |
| Parties | Eric A. Sansbury, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.
Before PIETSCH, Judge.
Eric A Sansbury appeals through counsel an August 21, 2020, Board of Veterans' Appeals (Board) decision that denied entitlement to (a) an effective date earlier than February 15, 2017, for the grant of service connection for post-traumatic stress disorder (PTSD), and (b) an initial disability rating greater than 50% for PTSD.[1] This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate as the issue is of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will affirm the part of the August 21, 2020, Board decision concerning the effective date and the disability rating for PTSD, and the Court will dismiss the portion of the appeal concerning the low back disability and concerning a disability rating for PTSD effective from February 29, 2016, to February 15, 2017.
Mr. Sansbury served on active duty in the U.S. Army from December 1990 to June 1991, with additional periods of active duty for training and in the Reserve. Record (R.) at 2873.
In February 2009, Mr. Sansbury filed a claim for service connection for a lower back condition and a mental condition. R. at 2852-72. In a May 2009 rating decision, the VA regional office (RO) denied service connection for a low back condition and for a mental condition. R. at 2754-59.
On November 13, 2015, VA mailed Mr. Sansbury a letter stating that it had received his intent to file a claim for compensation on November 11, 2015; that he must complete an application for compensation (VA Form 21-526EZ) for VA to begin processing his claim for compensation; and that VA may be able to compensate him from the date VA received his intent to file if his completed application is received within 1 year from the date that his intent to file was received. R. at 2688-91. Less than 1 year later, on February 29, 2016, Mr. Sansbury filed a written intent to file a claim for compensation. R. at 2686-91.
Less than 1 year later, on February 15, 2017, VA received Mr. Sansbury's formal claim for disability compensation (VA Form 21-526EZ) for PTSD and for a lower back condition. R. at 2593-97. That month, he also submitted copies of service department records. Mr. Sansbury underwent a VA PTSD examination in May 2017, and the examiner diagnosed him with PTSD and noted his symptoms. R. at 992-1002.
Later in May 2017, the RO granted service connection for PTSD, assigning a 30% initial rating, effective February 15, 2017. R. at 942-48. The RO also declined to reopen the previously denied claim for service connection for a low back condition based on the determination that the evidence submitted was not new and material. Id. The next month, Mr. Sansbury filed a Notice of Disagreement (NOD) with the RO's refusal to reopen the claim for a low back condition and with the assigned effective date and disability rating for PTSD. R. at 826-27. In August 2017, the RO issued a Statement of the Case (SOC) denying an earlier effective date and a rating higher than 30% for PTSD and declining to reopen the claim for service connection for a low back condition. R. at 727-65. In October 2017, Mr. Sansbury filed a VA Form 9, perfecting his appeal. R. at 679-702.
In November 2017, Mr. Sansbury testified at a hearing before the RO. R. at 512-93. In March 2018, Mr. Sansbury underwent a VA PTSD examination, and the examiner diagnosed him with PTSD and noted his symptoms. R. at 429-32.
In April 2018, the RO granted an increased rating of 50% for PTSD, effective March 22, 2018. R. at 327-30. That same day, the RO issued a Supplemental Statement of the Case (SSOC) implicitly reopening the previously denied claim for service connection for a low back condition; denying service connection for a low back disability on the merits; granting an increased rating of 50%) for PTSD, effective March 22, 2018; and denying an effective date earlier than February 15, 2017, for the grant of service connection for PTSD. R. at 314-26.
In March 2020, Mr. Sansbury testified at a hearing before the Board. R. at 154-228. In June 2020, Mr. Sansbury filed through counsel argument concerning the effective date and rating for PTSD and concerning service connection for a low back condition. R. at 47-54.
In the August 2020 decision on appeal, the Board found that it was unnecessary to reopen the previously denied claim for service connection for a low back disability and remanded the service connection claim. The Board noted the RO's prior denial of service connection in May 2009; the Board found that "the Veteran has since submitted, in February 2017, a copy of a service treatment record (STR) dated in May 1991 that shows an assessed 'Mild lower back strain' injury"; the Board found that this STR was not of record at the time of the May 2009 rating decision; and the Board found that this STR sufficiently triggered reconsideration of the claim for service connection for a low back disability under 38 C.F.R. § 3.156(c). R. at 10. The Board concluded: "Given the submission of this new service department record, the Veteran's low back disability service connection claim must be reconsidered without regard to the previous denial." Id.
Regarding the effective date for PTSD, the Board applied 38 C.F.R. § 3.155(b)(6) to its factual findings concerning when VA received Mr. Sansbury's two intents to file and his completed claim for service connection for PTSD; the Board concluded that under § 3.155(b)(6) no effective date earlier than February 15, 2017, for the grant of service connection for PTSD, was warranted. R. at 11-16.
Regarding the 50% rating for PTSD, the Board weighed the evidence; applied 38 U.S.C. § 4.130 to the facts; found that a 50% rating was warranted for the entire period on appeal since February 15, 2017, based on Mr. Sansbury's symptoms and resulting impairment; and concluded that the preponderance of the evidence was against an award of a rating higher than 50%. R. at 22-30.
The Court has jurisdiction to determine whether the Board had jurisdiction to take the action it takes in a decision," Young v. Shinseki, 25 Vet.App. 201, 203 (2012) (en banc order), and "the Court exercises de novo review over Board determinations that are critical to its jurisdiction." Evans v. Shinseki, 25 Vet.App. 7, 10 (2011). The Court has jurisdiction to review a final decision of the Board with respect to the benefit sought by the claimant. See 38 U.S.C. §§ 7252(a), 7266(a); Maggittv. West, 202 F.3d 1370, 1375-76 (Fed. Cir. 2000). The Court reviews de novo the Board's legal conclusions for whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A).
38 C.F.R. § 3.156(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 VA received the previously decided claim, whichever is later . . . ." 38 C.F.R. § 3.156(c)(4).
Mr. Sansbury argues that the Board should not have remanded the February 2009 claim of entitlement to service connection for a low back disability. See Appellant's Brief (Br.) at 6, 7-14.
The Secretary responds that the Court should dismiss for lack of jurisdiction the portion of the appeal concerning the low back disability. He argues that Board provided the remedy that Mr. Sansbury seeks, namely a Board order directing the Secretary to reconsider the original claim for service connection for a low back disability without regard to the May 2009 RO denial. See Secretary's (Sec.) Br. at 14.
As a preliminary matter, the Court notes that the Mr. Sansbury does not dispute that his application to reopen the previously denied claim for a low back condition was within the Board's jurisdiction to address. See Br. at 7, 10. The Board has jurisdiction over appeals of initial VA decisions and an appeal is initiated by the filing of an NOD and perfected by the filing of a substantive appeal. 38 U.S.C. §§ 7104(a), 7105(a) (2018); Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc). Here, the RO denied Mr. Sansbury's application to reopen; he filed an NOD with that denial; and he subsequently perfected his appeal by filing a VA Form 9, thus placing his application to reopen before the Board. The Court will now address Mr. Sansbury's arguments.
First Mr. Sansbury argues that rather than rendering a purportedly ultra vires remand, the Board should have referred the claim for service connection for a low back disability under § 19.9(b) because the RO purportedly had not adjudicated the original claim for service connection in the first instance. See Br. at 12-13. Mr. Sansbury does not articulate any basis for this argument in light of how the RO denied the original claim for...
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