Jones v. Wilkie

Case: 18-2376 Document: 41 Page: 1 Filed: 07/15/2020

United States Court of Appeals
for the Federal Circuit
______________________

FLORENCE JONES,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2018-2376
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-105, Senior Judge Mary J.
Schoelen.
______________________

Decided: July 15, 2020
______________________

KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, for claimant-appellant.

BORISLAV KUSHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
ETHAN P. DAVIS, ROBERT EDWARD KIRSCHMAN, JR., LOREN
MISHA PREHEIM; JONATHAN KRISCH, Y. KEN LEE, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
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2 JONES v. WILKIE

Before O’MALLEY, BRYSON, and HUGHES, Circuit Judges.
BRYSON, Circuit Judge.
Appellant Florence Jones, the widow of deceased vet-
eran Thomas Jones, seeks to overturn a decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) regarding the effective date that the De-
partment of Veterans Affairs (“DVA”) assigned to benefits
awarded to Mr. Jones. We affirm.
I
Mr. Jones served on active duty with the U.S. Army
between August 1967 and October 1974, and he served in
the Army National Guard from March 1987 to October
1990. In 1994, he filed a claim for disability benefits for a
nervous disorder and a right leg wound. A DVA regional
office granted service connection for a right leg scar, but
found that disability to be non-compensable. The regional
office denied the claim for a nervous condition. The office
found that there was no objective evidence in his service
medical records of an in-service stressor, i.e., a traumatic
event that caused his nervous disorder, although the ser-
vice medical records were incomplete. Mr. Jones did not
appeal that decision, which became final in 1995.
Several years later, on October 7, 2002, Mr. Jones filed
a request to reopen his claim, which he characterized as a
claim for post-traumatic stress disorder (“PTSD”). In the
request, he asserted that he was assaulted by muggers
while he was stationed in Germany, which resulted in his
developing PTSD. The regional office denied his request
for reopening on the ground that the evidence did not es-
tablish an in-service stressor and also that certain evidence
that Mr. Jones presented was not new and material.
In a 2006 deferred rating decision, a DVA rating officer
noted that the DVA had requested Mr. Jones’s active duty
service records in 1994, but that it was unclear whether all
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JONES v. WILKIE 3

of those records had been obtained. The rating officer di-
rected the regional office to attempt to obtain the records.
The office received a copy of Mr. Jones’s active duty medical
records on March 2, 2006, and a copy of Mr. Jones’s entire
personnel file on June 22, 2006.
Subsequently, in an August 2008 decision, the Board of
Veterans’ Appeals granted Mr. Jones’s request to reopen
and remand his claim for further development. The Board
directed the regional office to obtain additional information
from two individuals with knowledge of the assault in Ger-
many, to obtain and associate with the claims folder all
available records relating to the development of the claim,
and to “readjudicate the claim for service connection for
PTSD on appeal in light of all pertinent evidence and legal
authority.”
In 2010, the regional office granted Mr. Jones service
connection for PTSD and a schizoaffective disorder, bipolar
type. 1 The regional office based its new rating decision in
part on Mr. Jones’s post-service DVA records, including a
treatment record from October 2002. But it did not rely on
Mr. Jones’s active duty records from 1967 to 1974. After
initially assigning a lower disability rating, the regional of-
fice later awarded Mr. Jones a 100% rating effective from
October 7, 2002, the date that he sought to reopen his
claim.
Not fully satisfied with that disposition, Mr. Jones
sought to have the effective date of his award made retro-
active to June 7, 1994, the date he first filed his claim. The

1 We note that the characterization of Mr. Jones’s af-
fliction evolved over course of the proceedings from “nerv-
ous disorder” to “PTSD” to “PTSD and a schizoaffective
disorder, bipolar type.” The parties do not contend that the
differences in those characterizations matter for purposes
of this appeal.
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4 JONES v. WILKIE

Board of Veterans’ Appeals denied that request in 2014.
On review, however, the Veterans Court vacated the
Board’s decision and remanded the case to the Board for
further explanation regarding certain factual findings.
The Veterans Court directed the Board to determine
whether a February 1971 service treatment record and a
March 1987 report from a Kansas Army National Guard
physician were associated with Mr. Jones’s claims file at
the time of the regional office’s decision on his claim in
1994.
Mr. Jones died in November 2014. His wife, appellant
Florence Jones, was substituted as claimant.
In a September 14, 2016, ruling, the Board determined
that the March 1987 report was part of the record at the
time of the regional office’s 1994 decision. The Board could
not determine if the February 1971 service treatment rec-
ords were associated with the claims file at that time. But
the Board determined that regardless of when the Febru-
ary 1971 records were associated with the file, neither the
March 1987 report nor the February 1971 records “pro-
vide[d] the basis, in all or in part, for the later reopening of
the Veteran’s claim for service connection for PTSD.”
The Board explained that the regional office already
knew in 1994 that Mr. Jones had suffered a right leg lacer-
ation as the result of an incident in 1968. But Mr. Jones,
according to the Board, had not reported that his PTSD
was related to that laceration until October 2002. 2 Previ-
ously, according to the Board, Mr. Jones had stated only

2 The Veterans Court said that the Board incorrectly
stated that the claim was reopened because of assertions
made by Mr. Jones in 2002 regarding the assault against
him. According to the Veterans Court, the reopening was
based on assertions made by Mr. Jones in 2003 and a 2008
statement by a DVA physician.
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JONES v. WILKIE 5

that he had been mugged, and he had not reported suffer-
ing from associated wounds. It was the October 2002 re-
port, corroborated by records showing a laceration, “that
served as a basis of the grant for the claim for service con-
nection,” the Board ruled. “Therefore, the additional ser-
vice records documenting treatment for a laceration to his
right leg did not serve as the basis for reopening and grant-
ing the claim in any respect.” For that reason, the Board
held that the effective date provision in the pertinent reg-
ulation, 38 C.F.R. § 3.156(c)(3), 3 was inapplicable in this
case; the Board therefore rejected Ms. Jones’s argument
that the effective date for Mr. Jones’s PTSD claim should
be 1994 rather than 2002.
Ms. Jones appealed to the Veterans Court, which af-
firmed the Board’s ruling. The court noted that, consistent
with the requirements of 38 C.F.R. § 3.156(c)(3), the DVA
had reconsidered Mr. Jones’s claim when the Board re-
manded the claim in 2008 and the regional office granted
him disability benefits in 2010. As to the role of the Feb-
ruary 1971 and March 1987 service records, the court up-
held the Board’s determination that those records were not
part of the basis for the award of benefits, and that the
Board therefore properly found that the effective date for
the award was October 7, 2002, the date on which the ap-
pellant sought to reopen his previously denied claim. The
decision in Mr. Jones’s favor, the court noted, was based on
evidence created in 2003 and 2008, which did not exist in
1994 when Mr. Jones’s claim was denied. Because section
3.156(c)(3) provides that newly associated records must

3 The regulatory framework applicable to this case
predates the Veterans Appeals Improvement Moderniza-
tion Act, Pub. L. No. 115-55 (2017). The regulations imple-
menting that Act became effective in February 2019, and
do not apply to this case.
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6 JONES v. WILKIE

have existed at the time of the initial decision in order to
warrant an effective date relating back to the date on which
the DVA received the previously decided claim, the court
held that the Board properly rejected Ms. Jones’s request
to revise the effective date for the PTSD claim from 2002 to
1994. 4 Ms. Jones took this appeal challenging the effective
date assigned to the award of benefits.
II
This court has appellate jurisdiction to review a deci-
sion of the Veterans Court with respect to any interpreta-
tion of a statute or regulation relied on by that court in
making its decision. 38 U.S.C. § 7292(a). We may not, how-
ever, review a challenge to a factual determination or a
challenge “to a law or regulation as applied to the facts of
a particular case.” Id. § 7292(d)(2).
Ms. Jones argues that the Veterans Court misinter-
preted 38 C.F.R. § 3.156(c) and relied on an incorrect legal
standard in applying that regulation. She characterizes
the court as holding that section 3.156(c)(1) did not require
reconsideration of Mr. Jones’s original claim even though
it was unclear whether an official service department file

4 The court said that the Board misstated the law
when it stated that the subsequently associated records did
not serve as the basis for reopening the previously denied
claim for PTSD. As the government acknowledges, the rel-
evant inquiry under 38 C.F.R. § 3.156(c)(3) is whether the
newly received or associated records were a basis for the
award, not for the reopening of the claim. The court ruled,
however, that the error was harmless because the Board in
its analysis fully considered the applicable provisions of
section 3.156(c) and properly applied the law when it ruled
that “the award of service connection was not based in all
or in part on the association of [the] February 1971 service
records with the file.”
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JONES v. WILKIE 7

was in the DVA’s possession at the time of the DVA’s orig-
inal decision. In addition, she argues that the court im-
properly held that section 3.156(c)(3) requires that the
newly discovered service department records be the basis
for both reopening the claim under section 3.156(a) and
granting the reopened claim, when in fact section
3.156(c)(3) requires only that the award be based in part on
the records identified by section 3.156(c)(1).
The regulation at issue in this case, 38 C.F.R.
§ 3.156(c), provides as follows, in pertinent part:
(c) Service department records.
(1) Notwithstanding any other section in
this part, at any time after VA issues a de-
cision on a claim, if VA receives or associ-
ates 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, notwith-
standing paragraph (a) of this section
[which provides for reopening claims upon
the receipt of new and material evidence].
...
(3) An award made based all or in part on
the records identified by paragraph (c)(1) of
this section is effective on the date entitle-
ment arose or the date VA received the pre-
viously decided claim, whichever is later, or
such other date as may be authorized by
the provisions of this part applicable to the
previously decided claim.
A
The DVA is required to “reopen” a finally adjudicated
claim under 38 C.F.R. § 3.156(a) if the claimant submits
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8 JONES v. WILKIE

new and material evidence in support of the claim. “Recon-
sideration” of a claim is required by 38 C.F.R. § 3.156(c)(1)
if the DVA receives official service department records that
existed but had not been associated with the claims file
when the DVA first decided the claim.
In the case of an award that results from reopening un-
der section 3.156(a), the effective date of the award is the
date the request for reopening was made or the date of en-
titlement, whichever is later. 38 U.S.C. § 5110(a); 38
C.F.R. § 3.400(q)(2); Blubaugh v. McDonald, 773 F.3d
1310, 1313 (Fed. Cir. 2014). If an award that results from
reconsideration under section 3.156(c) was based in whole
or in part on the newly obtained records, the award will be
made effective on the date the original claim was received
(or the date of entitlement if that is later than the date of
receipt of the claim). 38 C.F.R. § 3.156(c)(3).
In this case, the DVA reopened Mr. Jones’s claim in
2008 based on new and material evidence. The February
1971 service records, which were not part of the claims file
when the DVA first denied Mr. Jones’s claim, were associ-
ated with the claims file prior to the 2008 reopening deci-
sion. Thus, as found by the Veterans Court, the DVA
considered the February 1971 service records, together
with all the other evidence of record, during the remand
proceedings before the regional office.
Although it is undisputed that the DVA reopened Mr.
Jones’s 1994 claim, Ms. Jones contends that DVA failed to
“reconsider” that claim. But she does not point to any evi-
dence that the DVA failed to reconsider. Nor does she sug-
gest what the DVA should have done differently in order to
comply with the obligation to “reconsider” the claim.
As this court explained in Blubaugh v. McDonald, re-
consideration under section 3.156(c) is meant to ensure
“that a veteran is not denied benefits due to an administra-
tive error.” 773 F.3d at 1313. The regulation “serves to
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JONES v. WILKIE 9

place a veteran in the position he would have been had the
VA considered the relevant service department record be-
fore the disposition of his earlier claim.” Id. The Veterans
Court has similarly described reconsideration under sec-
tion 3.156(c) as requiring the agency to reassess its original
decision in light of the new service records, which may in-
clude the development of additional evidence. George v.
Shulkin, 29 Vet. App. 199, 205 (2018), vacated on other
grounds sub nom. George v. Wilkie, 782 F. App’x 997 (Fed.
Cir. 2019); see also Poole v. Wilkie, No. 19-0041, 2020 WL
2108261, at *4 (Vet. App. May 4, 2020). Because the DVA
considered Mr. Jones’s claim in view of the records that Ms.
Jones alleges should have been a part of the claimant’s file
from the outset, the DVA “reconsidered” the claim per 38
C.F.R. § 3.156(c)(1), as held by the Veterans Court. 5
The regional office subsequently awarded benefits.
That award was exactly what Mr. Jones sought when he
requested reopening of his initial claim. The only remain-
ing question was what the effective date of that award
should be.
As to that question, the Board properly applied the
standard set forth in 38 C.F.R. § 3.156(c), as held by the
Veterans Court. The Board examined whether the award
was based in whole or in part on any of the service records
that existed but were not available to the regional office at
the time of the initial decision on Mr. Jones’s claims. The
Veterans Court found that the Board had correctly applied
the law regarding the effective date for the award. We see

5 Ms. Jones also contends the Veterans Court erred
because the Board failed to determine whether the alleg-
edly missing records were relevant as required by 38 C.F.R.
§ 3.156(c)(1). But the government has not disputed that
the newly associated records were relevant and that recon-
sideration was required.
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10 JONES v. WILKIE

no legal error in the Veterans Court’s conclusion in that
regard.
The outcome of that issue was not dictated by any dis-
tinction between reopening and reconsideration, both of
which occurred here. Instead, the key issue was whether
the award was attributable in whole or in part to the newly
obtained service records, as directed by 38 C.F.R.
§ 3.156(c). To the extent Ms. Jones is suggesting that “re-
consideration” mandates that the effective date of any
award must necessarily be retroactive to the date of the in-
itial claim, that argument is squarely contrary to section
3.156(c), which defines the particular circumstances in
which such a retroactive effective date is required.
The regulations make clear that reconsideration of the
initial claim is required if any relevant official service per-
sonnel records or service medical records were not associ-
ated with the claims file at the time of the DVA’s initial
decision on the claim. The DVA assumed that was true
here and conducted reconsideration after the claim was or-
dered reopened. The DVA then granted an award of bene-
fits. But that award was not predicated in any way on
records that were not before the DVA at the time of the
initial decision on the claim. Thus, as the Board held, the
proper effective date was the date of the request for reopen-
ing, not the date of the initial claim. That is consistent with
the procedure dictated by section 3.156 and does not reflect
a misinterpretation of the regulations by the Veterans
Court. See Blubaugh, 773 F.3d at 1314; New and Material
Evidence, 70 Fed. Reg. 35388, 35389 (June 20, 2005).
B
Ms. Jones also contends that the Veterans Court relied
on an incorrect legal standard because it erroneously re-
quired that newly discovered service department records
be the basis both for reopening the claim and for awarding
benefits on the reopened claim. That is not what either the
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JONES v. WILKIE 11

Board or the Veterans Court did. Although the Board
noted that Mr. Jones’s claim was reopened based on evi-
dence obtained after the 1994 decision denying his claim,
that fact was cited simply as contextual support for the
Board’s determination that the award of benefits was not
attributable to the pre-1994 service records that were ob-
tained after the denial of the claim. On the critical issue
as to the evidence on which the Board based its award, the
Veterans Court wrote: “The Board explained that the Feb-
ruary 1971 service medical record and the March 1987 ser-
vice record were not the basis for reopening, and more
significantly, the eventual grant of the appellant’s claim.”
Thus, contrary to Ms. Jones’s contention, the Veterans
Court did not require that in order to trigger the effective
date provision of 38 C.F.R. § 3.156(c)(3), the claimant had
to show that both the reopening of the claim and the award
were based in part or in whole on the records identified in
section 3.156(c)(1). As the Veterans Court ruled, the Board
focused its analysis on whether the award was based on
those records, and not on whether the decision to reopen
the claim was based on those records. There was therefore
no legal error in the interpretation of section 3.156(c)(3).
Ms. Jones points to the purported error made by the
Board in referring to the service records as not serving “as
a basis for reopening the previously denied claim,” rather
than stating that those records did not serve as a basis for
reconsidering the previous denial of Mr. Jones’s claim and
awarding benefits. Ms. Jones challenges the Veterans
Court’s conclusion that the Board’s error was harmless.
Although the Board in its findings of fact stated that the
subsequently associated records did not serve as the basis
for reopening the previously denied claim, the Board ap-
plied the proper standard when it analyzed whether the
subsequently associated records served, in whole or in part,
as the basis for the award. The Veterans Court acknowl-
edged the Board’s purported error in referring to the basis
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12 JONES v. WILKIE

for reopening rather than the basis for the award, but in
light of the Board’s application of the proper legal standard
in the course of its analysis, the court held that error to be
harmless.
Citing Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir.
2007), and Pitts v. Shinseki, 700 F.3d 1279 (Fed. Cir. 2012),
the government argues that this court lacks jurisdiction to
decide whether the Veterans Court was correct in finding
that the Board’s remark about reopening was harmless er-
ror. To review that ruling by the Veterans Court, the gov-
ernment argues, would be to review an application of law
to fact, contrary to the statutory limit on this court’s juris-
diction in appeals from the Veterans Court under 38 U.S.C.
§ 7292(d)(2).
Ms. Jones responds that the Board’s misstatement con-
stituted an error of law. She contends that the Board and
the Veterans Court relied on the misstatement and applied
the wrong legal standard in making the effective date de-
termination.
As explained above, we uphold the Veterans Court’s de-
termination that the Board applied the correct legal stand-
ard under 38 C.F.R. § 3.156(c) when it analyzed the
effective date issue. What remains is the Veterans Court’s
conclusion that, given that the Board applied the proper
legal standard, the Board’s purported mischaracterization
of the test early in its opinion was harmless. On that nar-
row issue, the government is correct that we lack jurisdic-
tion to review the Veterans Court’s ruling in light of
Newhouse and Pitts.
Because we find no error by the Veterans Court falling
within our appellate jurisdiction, we affirm the Veterans
Court’s judgment.
No costs.
AFFIRMED