Case: 19-1780 Document: 48 Page: 1 Filed: 04/30/2021
United States Court of Appeals
for the Federal Circuit
______________________
ENRIQUE M. FLORES-VAZQUEZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2019-1780
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3989, Judge Joseph L. Toth.
______________________
Decided: April 30, 2021
______________________
EVAN TYLER SNIPES, Veterans Legal Advocacy Group,
Arlington, VA, for claimant-appellant. Also represented by
HAROLD HAMILTON HOFFMAN, III.
SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by JEFFREY
B. CLARK, MARTIN F. HOCKEY, JR., ROBERT
EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK
SCADDEN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
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2 FLORES-VAZQUEZ v. MCDONOUGH
Before NEWMAN, DYK, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Dissenting opinion filed by Circuit Judge NEWMAN.
DYK, Circuit Judge.
Enrique Flores-Vazquez appeals a decision of the Court
of Appeals for Veterans Claims (“Veterans Court”) uphold-
ing a denial of an earlier effective date for a service-con-
nected disability. We affirm.
BACKGROUND
This case presents a question of interpretation of 38
C.F.R. § 3.156(c), a regulation of the Department of Veter-
ans Affairs (“VA”). The current version of § 3.156(c) allows
the reconsideration of a previously denied claim and the
availability of an earlier effective date when service-con-
nected benefits have been allowed if VA receives “service
department records that existed and had not been associ-
ated with the claims file when VA first decided the claim.”
38 C.F.R. § 3.156(c)(1) (2021). But an earlier effective date
can only be granted if the award of benefits was “made
based all or in part” on the newly obtained records. Id.
§ 3.156(c)(3). The question is whether the grant of benefits
to Mr. Flores-Vazquez was based on such service depart-
ment records.
I
Mr. Flores-Vazquez served on active duty in the Navy
from April 1984 to April 1988. In November 1998, Mr. Flo-
res-Vazquez submitted a claim for service connection for
depression that he claimed began during service and for
which he received treatment while onboard the U.S.S. Kitty
Hawk. In March 1999, during an outpatient mental-health
examination, Mr. Flores-Vazquez stated that he had wit-
nessed several accidental deaths during active service, in-
cluding “a man being sucked inside the nose of an
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FLORES-VAZQUEZ v. MCDONOUGH 3
airplane.” J.A. 102. At the time, Mr. Flores-Vazquez did
not submit service department records supporting the ex-
istence of the incidents.
In September 1999, the regional office denied service
connection for depression. The regional office noted that
“[a]lthough there [was] a record of treatment in service for
one episode of acute reactive depression, no permanent re-
sidual or chronic disability subject to service connection
[was] shown by service medical records or demonstrated by
evidence following service.” Id. at 120. The regional office
also treated his claim as asserting service connection for
schizoaffective disorder but denied it as well, noting that
“[t]his condition [was] not shown to have occurred in mili-
tary service, nor was it shown to have been aggravated or
caused by service, nor did it develop to a compensable de-
gree within one year of military discharge.” Id. at 121. Mr.
Flores-Vazquez did not appeal this decision, and it became
final.
II
In January 2005, there began a series of decisions that
led to the decision under review. Some detailed description
of those proceedings is necessary. 1 First, Mr. Flores-
Vazquez filed a request to reopen his denied 1998 claim for
service connection for depression. The regional office then
ordered a medical examination, which Mr. Flores-Vazquez
underwent in May 2005. The examiner diagnosed bipolar
disorder with depression and determined that the condi-
tion was “due to or the result of in[-]service illness.” Id.
at 128. The examiner noted Mr. Flores-Vazquez’s
1 In the interest of brevity, we have excluded the his-
tory of Mr. Flores-Vazquez’s claim for post-traumatic
stress disorder (“PTSD”), which was ultimately denied on
the ground that Mr. Flores-Vazquez does not suffer from
PTSD.
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4 FLORES-VAZQUEZ v. MCDONOUGH
recollection of “very stressful episodes on the ship in which
he served,” including “a fire” and seeing another service
member being “fragmented by [a] plane running into him.”
Id. at 125.
In June 2005, the regional office nonetheless denied
service connection on the grounds that the VA medical
opinion was “of little probative value because it appeared
to be based on the veteran’s unsupported report of contin-
ued psychiatric symptoms following service.” Flores-
Vazquez v. Wilkie, No. 17-3989, 2018 WL 6817851, at *1
(Vet. App. Dec. 28, 2018).
Mr. Flores-Vazquez then submitted additional, non-
service-related records in 2006 to support his claim, but the
regional office denied his claim. Mr. Flores-Vazquez ap-
pealed to the Board of Veterans’ Appeals (“Board”). In 2008
and 2009, while Mr. Flores-Vazquez’s appeal was pending,
the VA received service department records in the form of
the 1987 command history of the Kitty Hawk and a report
from the Department of Defense regarding the 1986 com-
mand history of the Kitty Hawk.
On February 1, 2010, the Board decided Mr. Flores-
Vazquez’s appeal of his claim for service connection for bi-
polar disorder with depression, as well as his claim for
PTSD. The Board found that “[t]he evidence in this case
[was] certainly not compelling.” J.A. 144. “Nevertheless,”
the Board found, referring to the May 2005 VA examina-
tion:
[S]ervice records [did] clearly show psychiatric
symptoms and a VA medical examiner, with bene-
fit of examination of the Veteran and review of the
record, ha[d] offered an opinion that it [was] at
least as likely as not that the Veteran’s bipolar dis-
order with depression [was] causally related to ser-
vice. Essentially, the examiner viewed the
in[-]service symptoms as most likely being the
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FLORES-VAZQUEZ v. MCDONOUGH 5
initial presentation of the disability now diagnosed
as bipolar disorder with depression.
Id.
Despite finding the evidence in the case not compelling,
the Board afforded “considerable weight” to the opinion of
the May 2005 VA examiner, stating:
The Board observes that the May 2005 VA exam-
iner is identified as a medical doctor in psychiatry.
The opinion is therefore entitled to considerable
weight based on the education and training of the
examiner. Based on the evidence, the Board finds
that service connection is warranted for bipolar dis-
order with depression.
Id.
The Board also considered but did not rely on the com-
mand histories of the Kitty Hawk:
The record also contains the command history of
the U.S.S. Kitty Hawk for the years 1986 and 1987.
The records show the death of a soldier by the same
name as the Veteran reported in a night flight op-
erations mishap on the flight deck in September
1986. The command history also shows that a fire
occurred in March 1987 aboard the ship, but due to
the efforts of the crew and fire-fighting teams, a
major disaster was averted.
Id. at 143–44. But the Board “discounted” the “relevance”
of the command histories. Flores-Vazquez, 2018 WL
6817851, at *2. The Board noted that, “[s]ignificantly, the
May 2005 examiner acknowledged the Veteran’s report of
the fire and a death of an individual during service, but the
examiner diagnosed bipolar disorder, not PTSD.” J.A. 145.
The Board, having found entitlement for service con-
nection for bipolar disorder, remanded. The regional office
granted service connection for bipolar disorder with
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6 FLORES-VAZQUEZ v. MCDONOUGH
depression with a rating of 30% and an effective date of
January 24, 2005, the date the regional office had received
Mr. Flores-Vazquez’s request to reopen his claim denied in
1999.
III
Mr. Flores-Vazquez appealed the rating decision to the
Board, seeking an earlier effective date of November 1998,
the date he originally filed a claim for service connection
for depression. Mr. Flores-Vazquez argued, in relevant
part, that the regional office failed to reconsider his claim
under 38 C.F.R. § 3.156(c). The Board, on May 5, 2015, de-
nied an earlier effective date under 38 C.F.R. § 3.156(c)(2).
On appeal, the Veterans Court vacated and remanded the
Board’s May 2015 decision on July 15, 2016, with instruc-
tions to “address the applicability” of the version of 38
C.F.R. § 3.156(c) that existed prior to amendment in 2006.
J.A. 182. 2
On October 10, 2017, on remand from the Veterans
Court, the Board found that § 3.156(c) did not apply be-
cause the Board’s award of benefits in 2010 “was not based
on” the new service department records. Id. at 28. On fur-
ther appeal to the Veterans Court, the Veterans Court also
found that the award of benefits “was not based in any way
on the new service records,” and thus, an earlier effective
date under § 3.156(c) was not available. Flores-Vazquez,
2018 WL 6817851, at *5.
Mr. Flores-Vazquez appeals.
2 Mr. Flores-Vazquez appealed the Veterans Court’s
July 2016 remand decision, and we dismissed for lack of
finality. Flores-Vazquez v. Snyder, 676 F. App’x 1012 (Fed.
Cir. 2017).
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FLORES-VAZQUEZ v. MCDONOUGH 7
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See 38 U.S.C. § 7292. We re-
view “the validity of a decision of the [Veterans] Court on a
rule of law or of any statute or regulation . . . or any inter-
pretation thereof (other than a determination as to a fac-
tual matter) that was relied on by the [Veterans] Court in
making the decision.” Id. § 7292(a). We have jurisdiction
to decide “all relevant questions of law” and to “set aside
any regulation or any interpretation thereof (other than a
determination as to a factual matter)” relied upon in the
decision of the Veterans Court that is “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” Id. § 7292(d)(1)(A). “Our review of these ques-
tions is de novo.” Manzanares v. Shulkin, 863 F.3d 1374,
1376 (Fed. Cir. 2017). But absent a constitutional ques-
tion, we “may not review (A) a challenge to a factual deter-
mination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2).
The VA “is required to ‘reopen’ a finally adjudicated
claim under 38 C.F.R. § 3.156(a) if the claimant submits
new and material evidence in support of the claim.” Jones
v. Wilkie, 964 F.3d 1374, 1378 (Fed. Cir. 2020). “In the case
of an award that results from reopening under section
3.156(a), the effective date of the award is the date the re-
quest for reopening was made or the date of entitlement,
whichever is later.” Id. at 1379 (citing 38 U.S.C. § 5110(a),
38 C.F.R. § 3.400(q)(2), and Blubaugh v. McDonald, 773
F.3d 1310, 1313 (Fed. Cir. 2014)). However, under 38
C.F.R. § 3.156(c), an exception to the general effective date
rule is available if VA receives new service department rec-
ords and awards benefits based on those new service de-
partment records. Jones, 964 F.3d at 1379.
The versions of the regulation, before amendment in
2006 and after amendment, are set forth in an attachment
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8 FLORES-VAZQUEZ v. MCDONOUGH
to this opinion. Mr. Flores-Vazquez argues that the “plain
language” of the pre-amended version of § 3.156(c) “did not
require that the service records contributed to service con-
nection before determining whether an earlier effective
date was warranted” and makes alternative arguments un-
der both the pre-amended and amended versions of the reg-
ulation as applied to his case. Appellant’s Br. 23. We need
not decide which version of § 3.156(c), before amendment
or as amended in 2006, applies here. Both versions of
§ 3.156(c) require that the award of benefits be based at
least in part on the new service department records to qual-
ify for an earlier effective date.
Mr. Flores-Vazquez’s argument—that the pre-
amended version does not require that the award be based
on the service department records—is contrary to the plain
language of § 3.156(c) before it was amended, which re-
quired that “[t]he retroactive evaluation of disability re-
sulting from disease or injury subsequently service
connected on the basis of the new evidence from the service
department must be supported adequately by medical evi-
dence.” 38 C.F.R. § 3.156(c) (2005) (emphasis added).
The 2006 amendment was intended to “clarif[y]” that
the award needs only to be “based all or in part on the rec-
ords” to qualify for an earlier effective date. New and Ma-
terial Evidence, 70 Fed. Reg. 35,388, 35,389 (June 20, 2005)
(Proposed Rule) (emphasis added). The 2006 amendment
“eliminate[d]” an “ambiguity” of the pre-amendment text of
§ 3.156(c), which “may be read as requiring an earlier ef-
fective date for the award of benefits upon reconsideration
only when the basis for the award is newly discovered ser-
vice department records.” Id. (emphasis added). The 2006
amendment did not eliminate the requirement of § 3.156(c)
that an earlier effective date is available only if the award
is based at least in part on the newly discovered service
department records.
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FLORES-VAZQUEZ v. MCDONOUGH 9
In Blubaugh, we interpreted § 3.156(c) as amended in
2006 to “only appl[y] ‘when VA receives official service de-
partment records that were unavailable at the time that
VA previously decided a claim for benefits and those rec-
ords lead VA to award a benefit that was not granted in the
previous decision.’” 773 F.3d at 1314 (quoting New and Ma-
terial Evidence, 70 Fed. Reg. at 35,388 (Proposed Rule)).
In Jones, we similarly held that under the amended version
of § 3.156(c), “the key issue [is] whether the award was at-
tributable in whole or in part to the newly obtained service
records.” 964 F.3d at 1380. If the award of benefits is “not
predicated in any way on records that were not before the
[VA] at the time of the initial decision on the claim,” then
“the proper effective date [is] the date of the request for re-
opening, not the date of the initial claim.” Id. 3
Here, the Veterans Court found that “the grant of ser-
vice connection for the psychiatric disorder at issue here
was not based in any way on the new service records.” Flo-
res-Vazquez, 2018 WL 6817851, at *5.
In the 2017 decision, the Board found that “the subse-
quent service connection grant by the Board in February
2010 was not based on the January 2008 [Department of
Defense] report and associated declassified command his-
tories obtained after the final September 1999 rating deci-
sion.” J.A. 28. The Board found that the Board’s 2010
“decision clearly identifie[d] the previously available ser-
vice treatment records documenting depression treatment
and the May 2005 VA medical opinion as the bases for the
award of service connection.” Id. at 27. The Board further
noted that “[t]he favorable May 2005 VA medical opinion
[was] not contingent on the verification of any particular
stressor from service department records” and that “the
3 We express no opinion on other aspects of the
amended version of § 3.156(c) or the pre-amended version.
Case: 19-1780 Document: 48 Page: 10 Filed: 04/30/2021
10 FLORES-VAZQUEZ v. MCDONOUGH
verification of the stressors occurred after issuance of the
VA medical opinion in question.” Id. at 28.
Likewise, on December 28, 2018, in the decision on ap-
peal here, the Veterans Court determined:
As the Board decision on appeal and other docu-
ments of record make plain, the Kitty Hawk com-
mand histories submitted in 2008 played no role in
the grant of service connection for bipolar disorder.
The favorable resolution of the claim turned on a
2005 VA examination and opinion that, in turn,
was based on the veteran’s service medical records
that had always been part of the claims file.
Flores-Vazquez, 2018 WL 6817851, at *5. Because of this
finding, the Veterans Court concluded that neither version
of § 3.156(c) authorized an earlier effective date for
Mr. Vazquez’s claim.
Mr. Flores-Vazquez argues that the “Veterans Court
required the Kitty Hawk records alone to carry the 2010
Board’s grant.” Appellant’s Br. 31. This is not what the
Veterans Court said. The Veterans Court applied the cor-
rect standard under § 3.156(c), which requires that, if the
award is “not predicated in any way on records that were
not before the [VA] at the time of the initial decision on the
claim,” then “the proper effective date [is] the date of the
request for reopening, not the date of the initial claim.”
Jones, 964 F.3d at 1380.
Mr. Flores-Vazquez also contends that the Veterans
Court applied an impermissibly high standard of what the
term “based in part” requires, as used in § 3.156(c) after the
2006 amendment. Appellant’s Br. 28. Mr. Flores-Vazquez
argues that “[b]ase” means “to lay a foundation” and that
“[t]he Kitty Hawk records laid a foundation to the 2010
Board’s grant” and “the Kitty Hawk records played a role
in the 2010 Board’s grant.” Id. at 27–29. We see no error
in the legal standard applied by the Veterans Court. To
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FLORES-VAZQUEZ v. MCDONOUGH 11
the extent that Mr. Flores-Vazquez argues that the Veter-
ans Court made a factual error in determining that the
Kitty Hawk records “played no role in the grant of service
connection for bipolar disorder,” Flores-Vazquez, 2018 WL
6817851, at *5, we have no jurisdiction to review that fac-
tual challenge. See 38 U.S.C. § 7292(d)(2).
CONCLUSION
We have considered Mr. Flores-Vazquez’s remaining
arguments and find them unpersuasive. Because the Vet-
erans Court did not err in its interpretation of 38 C.F.R.
§ 3.156(c), we affirm.
AFFIRMED
COSTS
No costs.
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12 FLORES-VAZQUEZ v. MCDONOUGH
ATTACHMENT
Prior to amendment in 2006, § 3.156(c) provided:
Where the new and material evidence consists of a
supplemental report from the service department,
received before or after the decision has become fi-
nal, the former decision will be reconsidered by the
adjudicating agency of original jurisdiction. This
comprehends official service department records
which presumably have been misplaced and have
now been located and forwarded to the Department
of Veterans Affairs. Also included are corrections
by the service department of former errors of com-
mission or omission in the preparation of the prior
report or reports and identified as such. The retro-
active evaluation of disability resulting from dis-
ease or injury subsequently service connected on
the basis of the new evidence from the service de-
partment must be supported adequately by medi-
cal evidence. Where such records clearly support
the assignment of a specific rating over a part or
the entire period of time involved, a retroactive
evaluation will be assigned accordingly except as it
may be affected by the filing date of the original
claim.
38 C.F.R. § 3.156(c) (2005).
The current version of § 3.156(c), aside from the March
2021 amendment to subsection (c)(2), is the same as
amended in 2006. Compare New Evidence, 86 Fed. Reg.
15,413, 15,414 (Mar. 23, 2021) (Final Rule); with New and
Material Evidence, 71 Fed. Reg. 52,455, 52,457 (Sept. 6,
2006) (Final Rule). Section 3.156(c) currently provides:
(1) Notwithstanding any other section in this part,
at any time after VA issues a decision on a claim, if
VA receives or associates with the claims file rele-
vant official service department records that
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FLORES-VAZQUEZ v. MCDONOUGH 13
existed and had not been associated with the
claims file when VA first decided the claim, VA will
reconsider the claim, notwithstanding paragraph
(a) of this section. Such records include, but are not
limited to:
(i) Service records that are related to a claimed in-
service event, injury, or disease, regardless of
whether such records mention the veteran by
name, as long as the other requirements of para-
graph (c) of this section are met;
(ii) Additional service records forwarded by the De-
partment of Defense or the service department to
VA any time after VA’s original request for service
records; and
(iii) Declassified records that could not have been
obtained because the records were classified when
VA decided the claim.
(2) Paragraph (c)(1) of this section does not apply to
records that VA could not have obtained when it
decided the claim because the records did not exist
when VA decided the claim, or because the claim-
ant failed to provide sufficient information for VA
to identify and obtain the records from the respec-
tive service department or from any other official
source.
(3) An award made based all or in part on the rec-
ords identified by paragraph (c)(1) of this section is
effective on the date entitlement arose or the date
VA received the previously decided claim, which-
ever is later, or such other date as may be author-
ized by the provisions of this part applicable to the
previously decided claim.
(4) A retroactive evaluation of disability resulting
from disease or injury subsequently service con-
nected on the basis of the new evidence from the
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14 FLORES-VAZQUEZ v. MCDONOUGH
service department must be supported adequately
by medical evidence. Where such records clearly
support the assignment of a specific rating over a
part or the entire period of time involved, a retro-
active evaluation will be assigned accordingly, ex-
cept as it may be affected by the filing date of the
original claim.
38 C.F.R. § 3.156(c) (2021).
Case: 19-1780 Document: 48 Page: 15 Filed: 04/30/2021
United States Court of Appeals
for the Federal Circuit
______________________
ENRIQUE M. FLORES-VAZQUEZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2019-1780
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3989, Judge Joseph L. Toth.
______________________
NEWMAN, Circuit Judge, dissenting.
This appeal concerns the interpretation of 38 U.S.C.
§ 7292(d) as implemented by 38 C.F.R. § 3.156(c), and spe-
cifically the effective date of disability payments to a vet-
eran when service-connection is established on
reconsideration of a previously denied claim. 1 Regulation
38 C.F.R. § 3.156(c) provides that when the veteran’s
1 Flores-Vazquez v. Wilkie, No. 17-3989, 2018 WL
6817851 (Vet. App. Dec. 28, 2018) (“Vet. Ct. Op.”); No. 08-
15 411, 2010 WL 1475320 (Bd. Vet. App. Feb. 1, 2010)
(“2010 BVA Op.”).
Case: 19-1780 Document: 48 Page: 16 Filed: 04/30/2021
2 FLORES-VAZQUEZ v. MCDONOUGH
previously-denied claim is refiled and granted on the basis
of new and material evidence received from a military ser-
vice department, the effective date of compensation is ret-
roactive to the filing date of the original claim.
The Court of Appeals for Veterans Claims (“Veterans
Court”) adopted the government’s position that this retro-
active provision applies only when the new service depart-
ment evidence is the sole basis for the finding of service
connection. That is not required by the statute and regu-
lation, and is inconsistent with the purpose of these enact-
ments. Preserving the error, the panel majority now rules
that the Federal Circuit does not have jurisdiction to re-
view this statutory/regulatory interpretation. From my
colleagues’ erroneous rulings, I respectfully dissent.
I
JURISDICTION
38 U.S.C. § 7292(d)(1) authorizes Federal Circuit re-
view of Veterans Court decisions on “all relevant questions
of law, including interpreting constitutional and statutory
provisions.” Review is here sought for interpretation of the
provisions governing the effective date of disability com-
pensation when the veteran’s claim was initially denied,
but then was granted after receipt of new and material ev-
idence from the military service department. The issue be-
fore us is the interpretation of this law, for the Veterans
Court had accepted the government’s argument that the
Board of Veterans Appeals (“BVA”) incorrectly interpreted
the law. Review of this interpretation is squarely within
our assigned jurisdiction.
The effective date of compensation for service-con-
nected disability is a recurring issue, for a veteran’s claim
is often initially denied, and subsequently granted as addi-
tional evidence is provided. The practice is the subject of
ongoing regulatory clarification; 38 C.F.R. § 3.156
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FLORES-VAZQUEZ v. MCDONOUGH 3
implements 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400. Rel-
evant provisions of 38 C.F.R. § 3.156 are:
§ 3.156(a). New evidence means existing evidence
not previously submitted to agency decisionmak-
ers. Material evidence means existing evidence
that, by itself or when considered with previous ev-
idence of record, relates to an unestablished fact
necessary to substantiate the claim.
***
§ 3.156(c). Where the new and material evidence
consists of a supplemental report from the service
department, received before or after the decision
has become final, the former decision will be recon-
sidered by the adjudicating agency of original juris-
diction. This comprehends official service
department records which presumably have been
misplaced and have now been located and for-
warded to the Department of Veterans Af-
fairs. . . . The retroactive evaluation of disability
resulting from disease or injury subsequently ser-
vice connected on the basis of the new evidence
from the service department must be supported ad-
equately by medical evidence. Where such records
clearly support the assignment of a specific rating
over a part or the entire period of time involved, a
retroactive evaluation will be assigned accordingly
except as it may be affected by the filing date of the
original claim.
38 C.F.R. § 3.156 (before 2006 amendment).
The Veterans Court interpreted § 3.156(c) as allowing
benefit of the original claim filing date “only when a claim
is granted because of newly associated service records.”
Vet. Ct. Op. at *5 (emphasis in original). The government
states that this means that if the grant could have been
supported without the new service records, then § 3.156(c)
Case: 19-1780 Document: 48 Page: 18 Filed: 04/30/2021
4 FLORES-VAZQUEZ v. MCDONOUGH
does not permit retroactive credit for the original claim
date. Govt Br. 28.
My colleagues hold that the determination of effective
date is entirely a factual determination specific to Mr. Flo-
res-Vazquez, and not an interpretation of law applicable to
all veterans. That is inapt, for the majority interprets
§ 3.156(c) as a matter of legal construction and meaning,
applicable to all veterans. It is our assignment under 38
U.S.C. § 7292(a) to assure that the law is correctly inter-
preted. Jackson v. Wilkie, 732 F. App’x 872, 875 (Fed. Cir.
2018) (“As prescribed by statute, our task is to review cer-
tain legal determinations relied upon by the Veterans
Court in deciding a case.”). My colleagues err in holding
that we do not have jurisdiction of this appeal and the stat-
utory/regulatory interpretation at issue.
On the correct interpretation of § 3.156(c), Mr. Flores-
Vazquez is entitled to the benefit of the filing date of his
original claim.
II
INTERPRETATION OF § 3.156(C)
A
As summarized in Mayhew v. Shinseki, 24 Vet. App.
273 (2011): “Read together, §§ 3.156(c) and 3.400(q)(2) pro-
vided that the effective date for an award of benefits based
on newly discovered service department records that were
previously unavailable may relate back to the date of the
original claim or date entitlement arose even though the
decision on that claim may be final.” Id. at 277 (internal
quotation marks and citations omitted). See also Blubaugh
v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014) (Section
3.156(c) views the former decision as reconsidered,
whereby the later decision is retroactive to the filing date
of the original claim).
Case: 19-1780 Document: 48 Page: 19 Filed: 04/30/2021
FLORES-VAZQUEZ v. MCDONOUGH 5
Mr. Flores-Vazquez filed his original claim for service-
connected psychiatric disorders in 1998; he received a psy-
chiatric examination that recorded his asserted in-service
stressors and treatment, but the claim was denied in 1999.
In 2005 he filed a request for reconsideration, and a Veter-
ans Administration (“VA”) psychiatric examination in 2005
diagnosed Mr. Flores-Vazquez with various afflictions in-
cluding “[b]ipolar disorder I, depress[ion], with psychotic
features.” J.A. 127. The VA examiner in 2005 concluded
that the diagnosis “is at least as likely as not . . . due to or
the result of in-service illness.” J.A. 127–28. However, the
claim was again denied in 2006, J.A. 131–34, the BVA find-
ing the examiner’s medical opinion to be “not new and ma-
terial” evidence because it was based on stressors “not
related [to] military service.” Vet. Ct. Op. at *1 (summa-
rizing BVA’s 2006 rating decision); J.A. 132.
In 2008, the BVA obtained Command History records
from the Department of Defense concerning events on the
U.S.S. Kitty Hawk in 1986 and 1987, the BVA having re-
quested such records in relation to a separate claim by Mr.
Flores-Vazquez for PTSD. The Command History records
had previously been “classified.” J.A. 104.
In 2010, the BVA granted service connection for psy-
chiatric disabilities as claimed by Mr. Flores-Vazquez, the
BVA stating that the newly provided Kitty Hawk records
were confirmation that was previously absent:
The record also contains the command history of
the U.S.S. Kitty Hawk for the years 1986 and 1987.
The records show the death of a soldier by the same
name as the Veteran reported in a night flight op-
erations mishap on the flight deck in September
1986. The command history also shows that a fire
occurred in March 1987 aboard the ship.
2010 BVA Op. at *4.
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6 FLORES-VAZQUEZ v. MCDONOUGH
The BVA stated that these Kitty Hawk records corrob-
orated the shipboard events reported by Mr. Flores-
Vazquez, and were new and material evidence as contem-
plated by § 3.156(c). The BVA explained that the Com-
mand History records, together with other evidence
starting with a March 1982 medical report, established ser-
vice connection. 2010 BVA Op. at *2; id. at *4–5 (explain-
ing that its determination was based on “all the evidence,
including that pertinent to service,” specifically including
the Command History and numerous medical reports in-
cluding the 2005 examination). The BVA concluded that:
“Based on the evidence, the Board finds that service con-
nection is warranted for bipolar disorder with depression”.
Id. at *5.
However, the BVA set the effective date for compensa-
tion as the date Mr. Flores-Vazquez refiled his claim in
2005, and the Veterans Court affirmed. The issue before
us is whether § 3.156(c) was correctly interpreted to bar re-
course to the original filing date, for the BVA explicitly in-
cluded the newly provided Command History records, in
combination with the other evidence, as establishing ser-
vice connection.
B
The Veterans Court recognized that the issue of effec-
tive date turned on the interpretation of § 3.156(c). In
2017, the BVA told the Veterans Court that although the
BVA’s 2010 grant of service connection for Mr. Flores-
Vazquez stated that the grant was based on a combination
of the Command History evidence together with the May
2005 psychiatric examination, the 2010 decision only iden-
tified “the previously available service treatment records
documenting depression treatment and the May 2005 VA
medical opinion as the bases for the award of service con-
nection.” Flores-Vazquez v. Wilkie, No. 11-16 375, 2017 WL
6050350, at *8 (Bd. Vet. App. Oct. 10, 2017) (“2017 BVA
Op.”).
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FLORES-VAZQUEZ v. MCDONOUGH 7
Thus the BVA in 2017 stated that in 2010 it did not
rely on the Command History records, and the Veterans
Court concluded that “they didn’t affect its decision to
grant service connection.” Vet. Ct. Op. at *4. The Veterans
Court acknowledged BVA’s statements in 2010 that its de-
cision was based on all evidence including the Command
History records. Id. at *2 (“In granting service connection
for bipolar disorder, the Board specifically mentioned nota-
tions in the Kitty Hawk command histories of a service-
man’s death and a fire.”); id. at *4 (“It is apparent from the
record that the Board reconsidered the veteran’s psychiat-
ric claim and that the Kitty Hawk command histories were
duly taken into account as part of that analysis.”). How-
ever, the Veterans Court accepted the government’s inter-
pretation that Ҥ 3.156(c) permit[s] assignment of an
earlier effective date only when a claim is granted because
of newly associated service records.” Id. at *5 (emphasis in
original). The Veterans Court ruled that “the Board’s grant
in 2010 was based primarily on the 2005 VA medical opin-
ion.” Id. at *3.
The Veterans Court accepted the BVA’s 2017 revision
of 2005–2010 history, and ruled that Mr. Flores-Vazquez’s
2005 medical examination sufficed to establish service con-
nection. The court did not mention that the claim was de-
nied based on the 2005 examination, and was not granted
until after the Command History records were provided.
Vet. Ct. Op. at *5. The Veterans Court concluded that be-
cause the 2005 medical examination, taken alone, sup-
ported the grant of service connection, this negated the
applicability of § 3.156(c).
The court also ruled that if the BVA had indeed relied
in 2010 on the Command History records, it did so in error,
for “they neither affected a substantial right that disrupted
the adjudication’s fundamental fairness nor disturbed the
Board’s ultimate determination on the claim for an earlier
effective date.” Vet. Ct. Op. at *5. The court stated that
“the command histories were not relevant to the veteran’s
Case: 19-1780 Document: 48 Page: 22 Filed: 04/30/2021
8 FLORES-VAZQUEZ v. MCDONOUGH
bipolar disorder claim.” Vet. Ct. Op. at *5. The Veterans
Court did not mention that service-connection was denied
on the 2005 medical examination, and was not granted un-
til the command histories were obtained.
On this appeal the government argues that unless the
newly provided service records are themselves “the basis”
for the grant of service connection, the retrospective benefit
of § 3.156(c) is not available. Govt Br. 26–27 (“Because the
command histories were not the basis of award, an earlier
effective date would not have been warranted under either
version of the regulation.”). As construed by the govern-
ment, § 3.156(c) requires that if other evidence could have
supported the grant of service connection, the newly pro-
vided service department records cannot achieve retroac-
tive benefit of the original claim date, although that benefit
was denied until the service records were considered. My
colleagues err in sustaining this flawed position.
C
It is not disputed that service-connection was denied to
Mr. Flores-Vazquez until the Kitty Hawk records were pro-
vided in 2008. The government acknowledges that the
BVA “[a]s part of its analysis” in 2010 “reviewed the com-
mand histories of the Kitty Hawk, and noted that the May
2005 examiner acknowledged Mr. Flores-Vazquez’s report
of his in-service stressors.” Govt Br. 7 (citation omitted).
The record is clear that the Command History evidence
combined with the earlier medical evidence changed the
BVA’s decision, on reconsideration of its prior denial of ser-
vice connection. 2010 BVA Op. at *5. There is no support
for the government’s position that a combination of old and
new evidence cannot meet the conditions of § 3.156(c).
Govt Br. 26–27.
On the correct interpretation of § 3.156(c) it appears
undisputed that the conditions for retroactive benefit were
met. From the court’s incorrect statutory/regulatory
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FLORES-VAZQUEZ v. MCDONOUGH 9
interpretation, and the ensuing flawed conclusion as ap-
plied to this veteran, I respectfully dissent.