Loyd v. Shulkin , 682 F. App'x 906 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL B. LOYD,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-1382
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1710, Judge Robert N. Davis.
______________________
Decided: March 29, 2017
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
COURTNEY D. ENLOW, 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., SCOTT D. AUSTIN; BRIAN D. GRIFFIN,
CHRISTINA LYNN GREGG, Office of General Counsel, Unit-
ed States Department of Veterans Affairs, Washington,
DC.
2 LOYD v. SNYDER
______________________
Before NEWMAN, CLEVENGER, and TARANTO, Circuit
Judges.
TARANTO, Circuit Judge.
Michael Loyd, a veteran of the Army, filed a claim
with the Department of Veterans Affairs for disability
benefits based on post-traumatic stress disorder (PTSD),
which he alleged resulted from his service in the Vietnam
War. The Department denied his claim, citing, as one
basis, lack of proof that he had been subjected to a recog-
nized stressor during his Army service. When he later
filed a claim to reopen, the Department granted him
benefits based on newly submitted evidence of a PTSD
diagnosis and information that enabled the Department
to confirm an in-service stressor through military records.
Mr. Loyd requested that the effective date of the benefits
reach back to the date of his original claim, invoking a
regulation allowing that result in certain circumstances
when a favorable reopening decision rests on records of
the military itself.
The Board of Veterans’ Appeals denied the request,
relying on the finding that, during the original claim
process before the Department, Mr. Loyd had not re-
sponded to the Department’s request for additional infor-
mation that might have uncovered the key, later-secured
military records. The Veterans Court affirmed. Loyd v.
McDonald, No. 14-1710, 2015 WL 6604012 (Vet. App. Oct.
30, 2015). We vacate the Veterans Court’s decision and
remand for further consideration.
I
Mr. Loyd served in the Army from 1966 to 1969, and
his service included time in Vietnam. On July 22, 2002,
the relevant regional office of the Department received a
claim from Mr. Loyd, dated June 6, 2002, seeking disabil-
LOYD v. SNYDER 3
ity compensation based partly on PTSD. On September
16, 2002, the regional office sought certain information
from Mr. Loyd, including the places and dates (or at least
the months or seasons) of the specific traumatic incidents
underlying the claim of PTSD and the identity of the unit
to which he was assigned at the relevant times. J.A. 190–
91. The request stated that he should respond within 30
days, while also stating that a response within one year
might allow benefits from the date on which the Depart-
ment received his claim. J.A. 192. Mr. Loyd did not
respond. On October 28, 2002, the regional office denied
the claim because (a) there was insufficient evidence of a
PTSD stressor and (b) Mr. Loyd had not provided a PTSD
diagnosis. J.A. 31–32. Mr. Loyd did not appeal that
decision.
In October 2006, Mr. Loyd filed a motion to reopen his
claim, and he included a June 6, 2006 diagnosis of PTSD.
The regional office denied Mr. Loyd’s motion because he
still had not provided evidence of a PTSD stressor. On
July 2, 2008, Mr. Loyd submitted another motion to
reopen his claim, and in September 2008 he submitted a
completed PTSD questionnaire that identified his pres-
ence in Bien Hoa, Vietnam, starting in December 1967.
From that information, the regional office was able to
identify his Army unit and, from Army records, the unit’s
presence in Bien Hoa during a January 31, 1968 “enemy
rocket and mortar attack.” J.A. 53. The regional office
awarded Mr. Loyd disability compensation for PTSD in
September 2009 and assigned an effective date of July 2,
2008, the date of the reopened claim, but it later changed
the effective date to June 6, 2006, the date of the PTSD
diagnosis.
Mr. Loyd appealed the decision to the Board of Veter-
ans’ Appeals on the ground that the effective date should
have been June 6, 2002, the date on which he claims he
submitted his original claim. The Board denied the
request for an earlier effective date. The Court of Appeals
4 LOYD v. SNYDER
for Veterans Claims affirmed that decision. Loyd, 2015
WL 6604012.
Mr. Loyd timely appeals. He argues that 38 C.F.R.
§ 3.156(c) (2002) governs here and that, under that regu-
lation, he was entitled to an effective date based on the
date of his original claim because the relevant new and
material evidence was found in service-department rec-
ords. We have jurisdiction to review “the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the [Veterans] Court in making the
decision.” 38 U.S.C. § 7292(a). We may review the Veter-
ans Court’s reliance on an incorrect legal standard and
consequent failure to apply the correct legal standard.
See, e.g., Willsey v. Peake, 535 F.3d 1368, 1371–72 (Fed.
Cir. 2008).
II
This case is in an unusual posture. The Veterans
Court did not address, let alone interpret and apply, 38
C.F.R. § 3.156(c) (2002), even though Mr. Loyd argued
that the 2002 version of the regulation is the version that
applies to this case. Rather, the Veterans Court’s opinion
refers only to the version of the regulation that took effect
in 2006—which (unlike the 2002 version) contains para-
graphs (1), (2), and (3), all of which the Veterans Court
quoted. Loyd, 2015 WL 6604012, at *2–3. In relying on
the 2006 version, the Veterans Court agreed with the
Board, which applied that version, see J.A. 155–61, and
with the government, which urged that the 2006 regula-
tion was the applicable version, Brief for Appellee Secre-
tary of Veterans Affairs at 8–13, Loyd v. McDonald, No.
14-1710 (Vet. App. May 14, 2015).
But the government has now abandoned that position
on appeal to this court. It does not defend the Veterans
Court’s reliance on the 2006 regulation. Given the gov-
LOYD v. SNYDER 5
ernment’s position before this court, we take it to be
conceded, for purposes of Mr. Loyd’s case, that the Veter-
ans Court committed a legal error in relying on the 2006
regulation and not undertaking to interpret and apply the
2002 regulation. We remand for the Veterans Court to
proceed in this case under the 2002 version of the regula-
tion. We cannot say that the error of relying on the 2006
regulation, instead of the 2002 regulation, was harmless.
It is true that both versions treat a reopening based
on certain kinds of new and material evidence—certain
evidence from the relevant service department—as war-
ranting special treatment, different from the treatment of
other claims for reopening based on new and material
evidence. While ordinary reopened claims, if successful,
result in benefits no earlier than the date of the claim for
reopening, see 38 C.F.R. § 3.400(q)(2); Sears v. Principi,
349 F.3d 1326 (Fed. Cir. 2003), reopened claims that are
within the special defined class based on service-
department records, if successful, result in reconsidering
the original decision, with benefits back to the time of the
original claim, not merely the time of the claim for reo-
pening. See 38 C.F.R. § 3.156(c) (2002); 38 C.F.R.
§ 3.156(c)(1) (current); New and Material Evidence, 71
Fed. Reg. 52,455, 52,456 (Sept. 6, 2006) (where the special
service-department-record rule applies, “benefits [are]
retroactive to the date of a previously decided claim”). In
that basic respect, the 2002 and 2006 versions of the
regulation are similar.
But in 2006, the Secretary added new, limiting lan-
guage to the provision. Under the new (c)(2), the just-
described distinctive treatment “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 claimant failed to provide suffi-
cient information for VA to identify and obtain the records
from the respective service department, the Joint Services
Records Research Center, or from any other official
6 LOYD v. SNYDER
source.” 38 C.F.R. § 3.156(c)(2) (current) (emphasis
added). In the present case, the Board and the Veterans
Court relied on the italicized language in tying their
rejection of Mr. Loyd’s argument for a 2002 effective date
to his failure to respond to the Department’s request for
information relevant to identifying an in-service stressor.
See J.A. 161; Loyd, 2015 WL 6604012, at *2–3. That basis
for decision finds no counterpart in the 2002 version of the
regulation, which did not contain the later-added (c)(2)
limit on the distinctive treatment of new and material
evidence based on certain service records.
A new analysis of the issue is required under the 2002
version of the regulation—considered in light of other
potentially pertinent legal provisions. We think that the
Veterans Court should undertake that analysis in the
first instance. We make only a few limited observations
here.
Although the government suggests that 38 U.S.C.
§ 5110(a) answers the effective-date question, we have
already held that the statute itself does not resolve the
matter of the effective-date choice for a claim to reopen,
but leaves the matter to the reasonable exercise of De-
partment discretion. Sears v. Principi, 349 F.3d at 1328–
31. Indeed, the distinctive treatment of some reopened
claims accorded by 38 C.F.R. § 3.156(c) seems to depend
on that statutory room for agency discretion. The gov-
ernment also points to 38 U.S.C. § 5107(a), which general-
ly requires that a claimant support a claim for benefits.
But it is not immediately apparent what role that provi-
sion has to play in interpreting regulations that specifical-
ly govern the effective-date issue.
Turning from the statutory to the regulatory realm,
the government emphasizes 38 C.F.R. § 3.159(c)(2)(i) for
its requirement (not materially changed since 2002) that
“in the case of records requested to corroborate a claimed
stressful event in service, the claimant must provide
LOYD v. SNYDER 7
information sufficient for the records custodian to conduct
a search of the corroborative records.” What bearing
§ 3.159 has on the interpretation and application of 38
C.F.R. § 3.156(c) (2002) requires fuller exploration than
we have before us at present. And in resolving the regu-
latory issue, we note that it is important to consider the
Department’s action in proposing and adopting the new
version of § 3.156(c) in 2005 and 2006, and in particular
whether the Department said anything of legal signifi-
cance about whether by adding (c)(2) it was merely clari-
fying, or was limiting, pre-existing law in the respect at
issue. See New and Material Evidence, 70 Fed. Reg.
35,388, 35,389 (June 20, 2005) (“We propose in
§ 3.156(c)(2) to limit the application of [§ 3.156(c)] by
stating that it ‘does not apply to records that VA could not
have obtained when it decided the claim because . . . the
claimant failed to provide VA sufficient information for
VA to identify and obtain the records from the respective
service department. . . . This limitation would allow VA to
reconsider decisions and retroactively reevaluate disabil-
ity in a fair manner . . . limited by the extent to which the
claimant has cooperated with VA’s efforts to obtain these
records.”); New and Material Evidence, 71 Fed. Reg. at
52,456 (“[T]he purpose of this rule is to clarify longstand-
ing VA rules, . . . which authorize VA to award benefits
retroactive to the date of a previously decided claim when
newly discovered service department records are re-
ceived.”).
The government’s final argument to us asserts that,
regardless of 38 C.F.R. § 3.156(c)(2002), Mr. Loyd was not
entitled to an effective date earlier than the date on which
he was diagnosed with PTSD, which was June 6, 2006.
The Veterans Court did not consider the effect of the date
of Mr. Loyd’s diagnosis. We will not do so in the first
instance.
8 LOYD v. SNYDER
III
For the foregoing reasons, the judgment of the Veter-
ans Court is vacated and the case is remanded.
Costs awarded to Mr. Loyd.
VACATED AND REMANDED