Gerry E. Gudinas v. Denis McDonough ( 2021 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2640
GERRY E. GUDINAS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued January 22, 2021 Decided April 16, 2021)
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Shondriette D. Kelley, with whom William A. Hudson, Jr., Acting General Counsel; Mary
A. Flynn, Chief Counsel; and Selket N. Cottle, Deputy Chief Counsel, were on the brief, all of
Washington, D.C., for the appellee.
Before PIETSCH, GREENBERG, and MEREDITH, Judges.
PIETSCH, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting
opinion.
PIETSCH, Judge: The appellant, Gerry E. Gudinas, through counsel appeals a
December 20, 2018, Board of Veterans' Appeals (Board) decision that denied an effective date
earlier than October 26, 2015, for the grant of a 100% rating for service-connected post-traumatic
stress disorder (PTSD). Record (R.) at 5-12. The Board remanded the issue of entitlement to
service connection for sleep apnea, as secondary to PTSD. Id. The remanded issue is not before
the Court. Hampton v. Gober, 10 Vet.App. 481, 483 (1997). 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). On
October 29, 2020, this matter was referred to a panel and oral argument was held on January 22,
2021. For the following reasons, the Court will affirm the Board's decision.
I. FACTS
The appellant had active service in the U.S. Army from October 1966 to October 1968.
R. at 886. In the September 2005 rating decision, the regional office (RO) granted service
connection for his PTSD, and evaluated it as 50% disabling, effective March 23, 2005. R. at 747-
52. In the December 2, 2008, rating decision, the RO continued the 50% disability rating for the
appellant's PTSD. R. at 649-53. In May 2014, the appellant filed a formal claim for service
connection for sleep apnea. R. at 456-59. In the August 2014 rating decision, the RO denied the
claim for service connection for sleep apnea, finding that the condition was not incurred in or
caused by service, R. at 400-05, and in September 2015,1 the appellant submitted his NOD with
the August 2014 rating decision, R. at 388-89. In an October 2015 letter, the appellant, through his
attorney, stated that he was submitting a properly executed VA Form 22a to authorize his current
attorney to act as his representative. R. at 349-53. His attorney further noted that the appellant "is
currently pursuing a claim for service connection for sleep apnea as secondary to his
service[ ]connected PTSD," that he is service connected for PTSD with a 50% rating and tinnitus
with a 10% rating, and that he "is now filing a claim for increased compensation based on
unemployability [(TDIU)]" due to his service-connected disabilities. R. at 353. Along with the
October 2015 letter, the appellant submitted an October 2015 TDIU application (VA Form 21-
8940), in which he maintained that his service-connected PTSD and tinnitus prevented him from
securing or following any substantially gainful occupation. R. at 346-47. The appellant also
submitted his Social Security earnings record, R. at 344, as well as a supplemental claim for a
higher rating for PTSD, R. at 340-41.
The appellant was afforded a VA psychiatric examination in December 2015, and based
on the examination findings, the examiner diagnosed him with PTSD with associated anxiety,
depression, and sleep disturbance. R. at 185, 185-94. The examiner also determined that the
appellant's PTSD resulted in occupational and social impairment with reduced reliability and
productivity. R. at 186. In a January 2016 rating decision, the RO increased the disability rating
for the appellant's PTSD from 50% to 100%, effective October 26, 2015, the date his claim was
received. R. at 167-74. The RO also denied entitlement to TDIU. R. at 172.
In an August 2016 Statement of the Case (SOC), the RO acknowledged the October 2015
letter from the appellant's attorney relating that the appellant's sleep apnea is secondary to his
service-connected PTSD, but the RO found no medical evidence to substantiate such a positive
correlation. R. at 134, 112-34. The RO concluded that "service connection for sleep apnea remains
1
Although the parties refer to this as a September 2014 Notice of Disagreement (NOD), see Appellant's Brief
(Br.) at 1; Secretary's Br. at 5, the record appears to reflect that VA notified the appellant of the rating decision in
September 2014 and that the appellant filed an NOD in September 2015, see R. at 389. For consistency, the Court will
refer to it as a 2015 NOD.
2
denied since this condition neither occurred in nor was caused by service." R. at 134. In October
2016, the appellant perfected his appeal of the decision denying service connection for sleep apnea.
R. at 98-103.
In November 2016, the appellant submitted an NOD as to the January 2016 rating decision,
also seeking entitlement to a total rating effective from May 30, 2014, to October 26, 2015, to
include an extraschedular total rating. R. at 77-82. The appellant disagreed with the October 26,
2015, effective date assigned for the 100% schedular rating for his PTSD, R. at 79, and he
contended that when assigning the effective date VA had failed to consider and correctly apply
38 C.F.R. § 3.156(b), R. at 80-81. Specifically, he asserted that in May 2014 he had "filed a claim
for increased compensation for his service[-]connected disability from [PTSD]," and on
October 26, 2015, while his appeal of the August 2014 decision was pending, "VA received new
and material evidence in the form of a VA Form 21-8940 and a copy of [the appellant's] Social
Security earnings records." R. at 80. He argued that under § 3.156(b), when the RO receives
evidence during the pendency of an appeal, the RO must assess whether the evidence constitutes
new and material evidence relating to the old claim. Id. Because the RO did not do that here, the
appellant asserted, the May 30, 2014, claim remains pending and he is entitled to a total schedular
rating from that date. R. at 81-82. In an October 2017 SOC, the RO denied entitlement to an
effective date of May 30, 2014, for the 100% rating assigned for the service-connected PTSD.
R. at 46-69. The appellant perfected his appeal of this issue in December 2017. R. at 33.
In the December 20, 2018, decision on appeal, the Board determined, after a review of the
evidence, that an effective date earlier than October 26, 2015, for a 100% rating for service-
connected PTSD is not warranted. R. at 5-8. Initially, the Board noted that the appellant filed an
application for TDIU on October 26, 2015, that VA considered his supplemental claim for
increased compensation for PTSD filed as of the same date (even though it was received on
November 2, 2015), and that the RO awarded a 100% PTSD rating from October 26, 2015, the
date VA received his claim.2 R. at 7. The Board then acknowledged the appellant's assertion that
he is entitled to an effective date of May 30, 2014, based on the submission of the VA Form 21-
8940 and Social Security earnings record, which according to the appellant, triggered § 3.156(b).
2
The Board also noted that pursuant to 38 C.F.R. § 3.400, the effective date in this case should be
December 12, 2015, the date entitlement arose, but the Board declined to disturb the RO's more favorable finding.
R. at 8.
3
Id. But, according to the Board, the May 30, 2014, claim was a claim for service connection for
sleep apnea, because the claim did not mention a psychiatric disability, including PTSD. Id. The
Board determined that the May 2014 claim "contained no mention of or indication that the
[appellant] intended to file a claim for an increase in the PTSD rating." Id. According to the Board,
in the May 2014 application "there was no intent to file for an increased [rating] for his
service-connected PTSD." Id. The Board determined that October 26, 2015, was the correct date
of the appellant's claim for an increased rating for PTSD and denied an effective date earlier than
the date of the claim. Id. at 7-8. This appeal followed.
II. THE PARTIES' ARGUMENTS
The main premise of the appellant's appeal is that once service connection has been
established for a disability, "any claim for additional service[-]connected compensation in the form
of an increased schedular rating, increased rating based on unemployability, or . . . secondary
service[-]connected compensation, is part and parcel of the same claim stream." Appellant's Br.
at 4. In making this argument, the appellant maintains that regardless of whether the claim is
framed or presented as a claim for increased schedular rating, increased rating based on
unemployability, or secondary service-connected compensation, "the purpose of all these claims
is to increase the amount of compensation payable for the veteran's service[-]connected injury." Id.
In this case, the appellant contends that VA received new evidence after he appealed VA's
denial of his May 2014 claim for service connection for sleep apnea, which triggered consideration
of 38 C.F.R. § 3.156(b).3 Id. at 6-7. In making this argument, the appellant is careful to describe
his claim for service connection for sleep apnea as one of "additional service[-]connected
compensation based on an additional disability proximately due to or the result of his
service[-]connected disability from [PTSD]." Id. In characterizing his May 2014 claim this way,
3
As a result of the passage of the Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA),
VA no longer reopens claims based on "new and material evidence." Pub. L. No. 115-55, 131 Stat. 1105 (Aug. 23,
2017). That language is derived from the pre-Act version of the applicable regulation. See 38 C.F.R. § 3.156(a) (2019);
38 C.F.R. § 3.2400 (2019) (explaining that claims filed before the effective date of the Act are "legacy appeals" to be
analyzed under VA's traditional process, and claims filed after that date are to be adjudicated under a modernized
appeal system); VA Claims and Appeals Modernization, 84 Fed. Reg. 2449, 2449 (Feb. 7, 2019) (stating the effective
date of the Act is February 19, 2019). Instead of filing claims to reopen based on "new and material evidence," under
VAIMA, claimants can file supplemental claims based on "new and relevant evidence." 38 U.S.C. § 5108(a) (effective
Feb. 19, 2019). The appellant's claim was adjudicated under the legacy appeals system and there is no assertion that
he elected into the modernized review system. Thus, the "new and material evidence" standard may still be applied in
this matter.
4
the appellant alleges that any evidence tending to support an award of "additional compensation"
is relevant to and supportive of this claim. Id. In other words, the appellant asserts that because the
May 2014 claim seeks secondary service connection for sleep apnea as a result of his
service-connected PTSD, he is thus seeking additional service-connected compensation due to
PTSD, thereby raising the issue of a higher rating for his PTSD. Id. at 4-7. Focusing on 38 C.F.R.
§ 3.155(d)(2), the appellant contends that "[a] claim for secondary service connection is an
ancillary claim for additional service[-]connected compensation in the same way that entitlement
to special monthly compensation under 38 C.F.R. § 3.350 is an ancillary benefit." Id. at 8.
According to the appellant, because the May 2014 claim raised the issue of entitlement to
a higher rating for PTSD, then pursuant to § 3.156(b), this claim remained pending because on
October 26, 2015, he submitted additional evidence, in the form of the VA Form 21-8940 TDIU
application and the Social Security earnings record, both of which were new and material evidence
with regard to his increased-rating claim. Id. at 7-9. In this regard, he asserts that the U.S. Court
of Appeals for the Federal Circuit's (Federal Circuit's) decisions in Bond v. Shinseki, 659 F.3d
1362 (Fed. Cir. 2011), and Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014), require VA to
"'assess any evidence submitted during the relevant period and make a determination as to whether
it constitutes new and material evidence relating to the old claim.'" Id. at 9 (quoting Bond, 659 F.3d
at 1367 (emphasis omitted)). The appellant argues that the Board failed to make that assessment
here because it too narrowly construed the May 2014 claim. Id.The appellant also attempts to expand the Court's holding in Rice v. Shinseki, 22 Vet.App.
447 (2009) (per curiam), in arguing that the October 2015 submissions were "part and parcel" of
his underlying May 2014 claim for "additional service[-]connected compensation for his disability
from [PTSD], as his disability from sleep apnea was secondary to his current disability from
[PTSD]." Id. at 4, 10. The appellant maintains that a claim for secondary service connection "is
comparable to a claim for increased compensation because, if granted, an award of secondary
service connection results in additional service[-]connected compensation." Id. at 10. The
appellant also references Harper v. Wilkie, 30 Vet.App. 356, 362 (2018), noting that he, like the
claimant in Harper, also has not been awarded the highest rating possible, including TDIU, for the
entire appeal period. Id. at 11.
The Secretary finds the appellant's arguments unavailing and unpersuasive. Secretary's Br.
at 3-10. First, the Secretary maintains that the record demonstrates that the May 2014 sleep apnea
5
claim is silent as to any psychiatric disability, to include PTSD, and the August 2014 rating
decision and the September 2015 NOD are also absent any discussion of PTSD. Id. at 5. According
to the Secretary, the appellant first asserted that his sleep apnea is secondary to his PTSD on
October 26, 2015, when he submitted the statement in support of his claim, along with the VA
Form 21-8940 and the Social Security earnings record. Id. The Secretary also contends that the
Board considered the appellant's contentions and correctly found that the May 2014 "'claim
contained no mention of or indication that the [appellant] intended to file a claim for an increase
in the PTSD rating[, and a]s such, there was no intent to file for an increase for his service-
connected PTSD.'" Id. at 6 (quoting R. at 7). With respect to the appellant's assertion that his May
2014 claim for sleep apnea "was a claim for 'ancillary benefits' under 38 C.F.R. § 3.155(d)," id.(quoting Appellant's Br. at 8), the Secretary responds that there was nothing in the May 2014 claim
or September 2015 NOD "potentially relating his sleep apnea to his PTSD or suggesting that [the
a]ppellant was seeking an increased rating for his service-connected PTSD." Id. The Secretary also
states that though "VA accepted informal claims at the time of [the] May 2014 filing[,] . . . for a
document to meet the threshold requirement to be considered a claim, it must, at a minimum,
contain an expression of an intent to apply for benefits and identify the benefits sought." Id. at 7.
The Secretary asserts that "[e]ven a sympathetic reading of [the a]ppellant's May 2014 claim
wholly fails to establish that he intended to seek benefits for sleep apnea as secondary to his PTSD
or an increased rating for his service-connected PTSD." Id.
As for the appellant's reliance on the Federal Circuit's decisions in Bond and Beraud, and
his attempts to expand this Court's rulings in Rice and Harper, the Secretary asserts that the
appellant has not established that these cases apply here. Id. at 8-9. According to the Secretary,
Bond and Beraud "involved a single disability," but here we are dealing with two separate
disabilities, id. at 8, and the "May 2014 claim for service connection for sleep apnea neither
rendered the issue part and parcel of, nor otherwise related it to, his service-connected PTSD," id.
at 9. In addition, it was not until the October 2015 letter and submissions were filed that there was
any connection between the appellant's sleep apnea and PTSD, as well as any indication that the
appellant was seeking a higher rating for his PTSD. Id. The Secretary asserts that the "[a]ppellant
would have the Court treat his May 2014 claim for service connection for sleep apnea as a claim
for an increased rating for his service-connected PTSD, without any evidence, prior to October
2015, that the claims were related." Id. at 9-10.
6
In his reply brief, the appellant asserts that the Secretary, like the Board, fails to
acknowledge VA's duty to maximize benefits and too narrowly construes his claim. Reply Br. at
2-4. He again contends that his May 2014 and October 2015 claims both sought increased
service-connected compensation—in 2014, based on a secondary disability, and in 2015, based on
three theories: an increased rating for PTSD, secondary compensation for sleep apnea, and
TDIU—and he avers that "[t]hese are all part and parcel of a claim for increased compensation."
Id. at 4 (citing Rice, 22 Vet.App. at 453). He also maintains that the Court's decision in Morgan
v. Wilkie, 31 Vet.App. 162 (2019), supports his contention that the May 2014 service connection
claim for sleep apnea "was a claim for a higher schedular rating for his service[-]connected
disabilities[,] to include as was done in 2015, a secondary claim due to his service[-]connected
PTSD." Id. at 5-6.
On January 12, 2021, the Secretary filed an unopposed motion for leave to file a
supplemental record of proceedings and explained that the "motion is being filed because there are
additional records before the Secretary and the Board . . . that are relevant to the issues decided by
the Board or . . . otherwise raised in the appeal." Motion at 1. In addition to submitting the
supplemental record of proceedings, pursuant to Rule 30(b), the Secretary also submitted a notice
of additional authority; specifically, the case of Ross v. Peake, 21 Vet.App. 528 (2008), aff'd sub
nom. Ross v. Shinseki, 309 F. App'x 394 (Fed. Cir. 2009), as significant authority "which provides
additional guidance on what constitutes a claim for increased compensation." Jan. 12, 2021, Letter
from the Secretary.
III. ANALYSIS
A. Law
At the time of the initial decision in this case, 38 U.S.C. § 5110, which governs the
assignment of an effective date for an award of benefits, provided:
[T]he effective date of an award based on an original claim, a claim reopened after
final adjudication, or a claim for increase, of compensation, dependency and
indemnity compensation, or pension, shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of application therefor.
38 U.S.C. § 5110(a) (2014). The implementing regulation similarly provided that the effective date
generally "will be the date of receipt of the claim or the date entitlement arose, whichever is later."
7
38 C.F.R. § 3.400 (2014).4 VA regulations further specified that, when new and material evidence
is received within an appeal period or prior to an appellate decision, "[t]he effective date will be
as though the former decision had not been rendered." 38 C.F.R. § 3.400(q). At issue here is a
related provision, which was applicable to pending claims and provided as follows: "New and
material evidence received prior to the expiration of the appeal period, or prior to the appellate
decision if a timely appeal has been filed, . . . will be considered as having been filed in connection
with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b)
(effective to February 19, 2019).
A Board determination as to the proper effective date is a finding of fact that will not be
overturned unless the Court finds the determination clearly erroneous. Evans v. West, 12 Vet.App.
396, 401 (1999). A finding of fact is clearly erroneous when the Court, after reviewing the entire
evidence, "is left with the definite and firm conviction that a mistake has been committed." United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52
(1990). As with any material issue of fact or law, the Board must provide a statement of the reasons
or bases for its determination "adequate to enable a claimant to understand the precise basis for the
Board's decision, as well as to facilitate review in this Court." Allday v. Brown, 7 Vet.App. 517,
527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
B. Scope of May 2014 Claim
Before the Court addresses whether the Board erred by failing to assess the evidence
submitted in October 2015 and whether that evidence constitutes new and material evidence
received under § 3.156(b), the Court must consider the appellant's contention that the Board too
narrowly construed the scope of his May 2014 claim. As mentioned above, the appellant's
arguments center on whether a claim for secondary service connection constitutes a claim for
4
Effective February 19, 2019, Congress amended portions of section 5110 and VA amended portions of
38 C.F.R. § 3.400 to comply with the appeals processing changes mandated by the VAIMA. See Pub. L. No. 115-55,
§ 2(x), 131 Stat. at 1115 (providing the effective date of statutory amendments); VA Claims and Appeals
Modernization, 84 Fed. Reg. 138, 170 (Jan. 18, 2019) (final rule); see also 84 Fed. Reg. at 2449 (notification of
effective date for regulatory amendments). However, the regulatory changes apply only to claims in which an initial
decision is issued after February 19, 2019, unless a "legacy" claimant elects to use the modernized review system.
84 Fed. Reg. at 177. There is no assertion that the new statute or rule should apply here; thus, the Court's analysis is
confined to the law in effect at the time of the RO's initial decision.
8
increased compensation relating to the already service-connected primary condition and whether
the secondary claim therefore is part and parcel of the same claim.5
1. Ross, Manzanares, and Rice
To begin, the Court assumes, without deciding, that the appellant's May 2014 claim for
sleep apnea encompassed the alternative theory of service connection—that his sleep apnea was
due to his service-connected PTSD. However, the Court cannot accept the appellant's contention
that such a claim is comparable to a claim for increased compensation because we are bound by
this Court's decision in Ross, which made clear that a claim for secondary service connection is
not the equivalent of a claim for increased compensation.
In Ross, the claimant appealed the disability rating assigned in a May 1999 rating decision
that had awarded service connection for a heart condition and assigned a 10% disability rating
effective February 1989. 21 Vet.App. at 529-30. On December 7, 1999, during the pendency of
that appeal, the appellant submitted additional evidence, which the RO considered to be a claim
for secondary service connection for depression. Id. During an administrative appeal, the RO
awarded service connection for depression and anxiety, secondary to the appellant's service-
connected heart condition, and assigned a 70% rating for this disorder, effective from December 7,
1999, the date it determined that the appellant claimed secondary service connection. Id. at 530.
On appeal to the Court, Mr. Ross raised two arguments for an earlier effective date: (1) The
effective date assigned an award of secondary service connection must be the same as the award
for the underlying condition because 38 C.F.R. § 3.310(a) states that the "'secondary condition
shall be considered a part of the original condition,'" id. at 531 (quoting 38 C.F.R. § 3.310(a)); and
(2) "a claim for secondary service connection is a claim for increased compensation," and,
therefore, the Board erred when it failed to consider the effective-date statute and regulation that
pertain to awards of increased compensation, id.Mr. Ross's second argument resembles the argument the appellant raises here on appeal—
that the appellant's claim for secondary service connection, which he characterizes as a claim for
"additional service[-]connected compensation," is "comparable to a claim for increased
compensation because, if granted, an award of secondary service connection results in additional
5
In this regard, the Court emphasizes that the appellant does not dispute the Board's factual finding that his
May 2014 claim does not mention a psychiatric disability or reflect an intent to file for an increased disability rating
for PTSD. Accordingly, we consider only, as argued, whether the Board legally erred by failing to construe his alleged
claim for sleep apnea as secondary to PTSD as a claim for increased compensation for PTSD.
9
service[-]connected compensation." Appellant's Br. at 10. The Court rejected the claimant's
argument in Ross, and held that "a claim for increased compensation is one where a veteran asserts
that an already service-connected condition has worsened[,] and not where . . . a veteran asserts
that he or she has incurred additional disabilities as a result of that service-connected condition."
21 Vet.App. at 532. The Court further held that while "§ 3.310(a) provides that the 'secondary
condition shall be considered a part of the original condition,' when secondary service connection
is thus established, . . . § 3.310(a) does not control the assignment of an effective date for that
award of secondary service connection." Id. (citing Roper v. Nicholson, 20 Vet.App. 173, 178
(2006), aff'd, 240 F. App'x 422 (Fed. Cir. 2007)). The Court noted that "§ 3.310(a) requires direct
and secondarily service-connected conditions to be afforded the same treatment for all purposes."
Id. (citing Roper, 20 Vet.App. at 181). Thus, the Court found that "an award of 'increased
compensation' within the meaning of [the applicable effective-date statute] does not encompass an
award of secondary service connection because, by definition, secondary service connection
requires the incurrence of an additional disability." Id. (quoting 38 U.S.C. § 5110(b)(2) (2008)).
Although the Court reached its holding in Ross in the context of determining entitlement
to an effective date under section 5110(b)(2), the Federal Circuit reached the same result when it
considered similar contentions under §§ 3.310(a) and 3.156(b). See Manzanares v. Shulkin,
863 F.3d 1374 (Fed. Cir. 2017). In that case, the claimant filed a claim for an increased rating for
her service-connected bilateral ankle disorder in February 2006, and in August 2006, VA assigned
a 10% rating for each ankle as well as an effective date of February 22, 2006. Id. at 1375. In April
2007, the claimant submitted her disagreement with the assigned disability rating, also filing a
claim for service connection for a lumbar spine disability as secondary to the service-connected
bilateral ankle disorder. Id. In a March 2008 rating decision, VA granted secondary service
connection for the lumbar spine disorder, evaluated it as 20% disabling, and assigned an effective
date of April 27, 2007, the date the claimant had filed her secondary-service-connection claim. Id.
The claimant appealed this decision to the Board and argued that she was entitled to an earlier
effective date of February 22, 2006, for the grant of secondary service connection for her back
disorder. Id. The claimant also argued that when considering § 3.156(b), "the secondary service
connection claim should be treated as new and material evidence within the meaning of this
regulation making the secondary service connection claim part of the ankle claim." Id. The Board
10
denied an earlier effective date for the service-connected low back disorder, and the claimant
appealed this decision to the Court, which affirmed the Board decision. Id.
On appeal before the Federal Circuit, the claimant argued that "her April 2007 claim for
secondary service connection for her back condition was 'part' of her pending ankle claim by virtue
of § 3.310(a)" and that "§ 3.156(b) required that . . . VA treat the 'new and material evidence'—
i.e., her back claim—'as having been filed' on February 22, 2006, the date of her ankle claim." Id.
at 1376. In the alternative, the claimant argued "that § 3.310(a) treats her back claim as part of her
ankle claim for purposes of 38 C.F.R. § 3.400(o)(2)," VA's regulation pertaining to effective dates
for claims for increased compensation. Id. at 1376-77.
The Federal Circuit observed that similar arguments had already been raised by the
claimant in Ross and that this Court rejected these arguments, concluding that "§ 3.310(a) does not
control effective dates for secondary conditions and, because a secondary condition is a separate,
additional disability, such a claim cannot be the same as a claim for increased rating, due to the
worsening of the underlying primary condition, for instance." Id. at 1377 (citing Ross, 21 Vet.App.
at 532-33). Relying on its decision in Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008), the
Federal Circuit then held that the language in § 3.310(a) "speaks in terms of conditions, not claims"
and "[b]y its plain terms . . . does not mean that a claim for secondary service connection is treated
as part of the primary claim for service connection (or a claim for increased rating for the primary
condition)." Id. at 1377-78; see id. at 1378 (noting that nothing in the definition of "claim," as
provided in 38 C.F.R. § 20.3(f) (2017), "suggests that it includes secondary conditions"); see also
Ellington, 541 F.3d at 1369-71 (affirming that primary and secondary service connection claims
are distinct for effective-date purposes).
Further, like the appellant, the claimant in Manzanares also argued that pursuant to
38 C.F.R. § 3.155(d)(2), her back claim should be treated as an "'ancillary benefit'" to her ankle
disorder. Id. at 1378; see Appellant's Br. at 8. This regulation provided:
Once VA receives a complete claim, VA will adjudicate as part of the claim
entitlement to any ancillary benefits that arise as a result of the adjudication
decision (e.g., entitlement to 38 U.S.C. Chapter 35 Dependents' Educational
Assistance benefits, entitlement to special monthly compensation under
38 C[.]F[.]R[. §] 3.350, entitlement to adaptive automobile allowance, etc.). The
claimant may, but need not, assert entitlement to ancillary benefits at the time the
complete claim is filed.
11
38 C.F.R. § 3.155(d)(2) (effective Mar. 24, 2015). In response to this argument, the Federal Circuit
held that "[a] claim for secondary service connection is not an 'ancillary benefit' within the meaning
of that regulation; all of the ancillary benefits referred to in § 3.155(d)(2) stem from the specific
condition that is the subject of the claim, not some other unidentified condition." Manzanares,
863 F.3d at 1378. In addition, the Federal Circuit determined that nothing in the history of
§ 3.310(a), to include its relationship to § 3.156(b), suggests that a claim for "secondary service
connection is part of a claim for primary service connection or one for increased rating for a
primary condition." Id. The Federal Circuit further explained that, although § 3.310(a) provides
that a disability that is secondary to a service-connected condition "'shall be considered a part of
the original condition,'" this "cannot mean that primary claims for service connection or
subsequent claims for increased ratings for primary conditions necessarily encompass later claims
for secondary service connection." Id. at 1379 (quoting 38 C.F.R. § 3.310(a)).
Notwithstanding the similarity among the arguments raised by the appellant here and the
arguments and issues addressed in Ross and Manzanares, the appellant did not cite either case in
his briefs. Further, when questioned at oral argument, the appellant maintained that neither case
controls the outcome here because in those cases the secondary condition was not part of the same
claim stream as the primary condition. Oral Argument (O.A.) at 11:05-12:52, 15:47-16:27,
Gudinas v. Wilkie, U.S. Vet. App. No. 19-2640 (oral argument held Jan. 22, 2021),
https://www.uscourts.cavc.gov/oral_arguments_audio.php. Indeed, he argued that in those cases
the claim for secondary service connection was made independent of any other action, and the
rating for the primary condition was not in play and had become final. Id. at 13:10-15:09. But here,
he asserted that a separate action in October 2015 took place as "part and parcel" of the pending
claim for secondary service connection. Id. He maintained that the secondary condition is part and
parcel of a claim for increase because, if successful, he would receive additional compensation,
and on this basis, he asked the Court to expand its holding in Rice. Id.; see id. at 18:33-:57,
24:00-:30.
The Court is not persuaded that there is any meaningful difference between the facts here
and those in Ross and Manzanares that would alter the legal conclusion that a claim for secondary
service connection is not a claim for increased compensation, and that claims for the primary and
secondary condition are not part and parcel of the same claim. First, contrary to the appellant's
contention, the foregoing discussion of Ross and Manzanares illustrates that in each case the claim
12
for secondary service connection was raised during the claimant's appeal of the disability rating
assigned for the primary condition, i.e., within one of the periods mentioned in § 3.156(b). See
Manzanares, 863 F.3d at 1375; Ross, 21 Vet.App. at 530. Next, although the order in which the
claims were raised here is reversed, in that the appellant maintains that he first filed his secondary
claim in May 2014 and, during the pendency of his appeal of the denial, requested an increase for
the primary condition in October 2015, the nature of the claims remains the same: the secondary
claim is seeking benefits for an additional disability, whereas the claim for an increased rating for
the primary condition is seeking benefits for the worsening of an already service-connected
disability. See Ross, 21 Vet.App. at 532.
Nor does the Court find availing the appellant's contention that his proffered interpretation
is a logical extension of Rice. In Rice, the Court determined that "a request for TDIU . . . is not a
separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a
disability or disabilities, either as part of the initial adjudication of a claim or . . . as part of a claim
for increased compensation." 22 Vet.App. at 453-54. Although the appellant argues that a
secondary service connection claim is comparable to a claim for increased compensation because
an award will result in an overall increase in service-connected compensation, the Court in Ross
explained that "being secondarily service connected is not analogous to being rendered
unemployable as a result of a service-connected disability because the latter demonstrates a
worsening of the underlying condition and not the incurrence of an additional disability."
21 Vet.App. at 532; see id. at 533 ("[A]lthough an award of secondary service connection may
result in an increase in the overall total disability compensation, it is a separate factor and such
award does not represent an increase in the severity of the original disability."); see also Dalton
v. Nicholson, 21 Vet.App. 23, 32-33 (2007) (holding that an award of TDIU based on an already
service-connected disability amounts to an award of increased compensation within the meaning
of section 5110(b)(2)); Wood v. Derwinski, 1 Vet.App. 367, 369 (1991) (holding that an
application for unemployability compensation "was an application for 'increased compensation'"
because the claimant "was not alleging any new disability," but was attempting to show that his
already service-connected condition "was more incapacitating than the level at which it was then
evaluated"). Thus, contrary to the appellant's argument, the Court in Ross essentially already
rejected his attempt to extend Rice.
13
2. Bond, Beraud, and § 3.156(b)
In further support of his claim, the appellant argues that the Court is bound by the Federal
Circuit's decisions in Bond and Beraud. O.A. at 12:00-:05; Appellant's Br. at 9. He notes that in
Bond the Federal Circuit held that § 3.156(b) "requires VA to 'assess any evidence submitted
during the relevant period and make a determination as to whether it constitutes new and material
evidence relating to the old claim.'" Appellant's Br. at 9 (quoting Bond, 659 F.3d at 1367 (emphasis
omitted)). The appellant also notes that in Beraud the Federal Circuit found Bond to be the
controlling law on VA's duty to make a § 3.156(b) determination. Id. (citing Beraud, 766 F.3d at
1407).
Applying Bond and Beraud to the facts of this case, the appellant contends that the Board
never determined whether his October 2015 submissions—the VA Form 21-8940 and Social
Security earnings statement—constituted new and material evidence as required under § 3.156(b),
and thus, his May 2014 claim, which he characterizes as a claim "for additional
service[-]connected compensation for his disability from [PTSD], asserting that his disability from
sleep apnea was secondary to his current disability from [PTSD], remains pending." Id. at 9-10. In
response, the Secretary notes that in Bond, "the issue involved a single disability," and in this case
the appellant "is attempting to expand that analysis to merge two separate disabilities and claim
streams[—]for[] PTSD, which is service connected, and sleep apnea, which [is not]." Secretary's
Br. at 8.
The Court agrees that Bond and Beraud are not controlling under the circumstances of this
case. Both Bond and Beraud confirm that under § 3.156(b), if an appellant submits new and
material evidence within the 1-year appeal period following an RO decision, VA has an obligation
to assess that evidence as if it were submitted as part of the underlying original claim. Bond,
659 F.3d at 1367-69. And if VA does not do so, the claim remains pending. Beraud, 766 F.3d at
1407. However, a review of the facts in both cases demonstrates why neither opinion applies here.
In Bond, the claimant submitted a request for increase for service-connected PTSD within
1 year of VA's award of an initial disability rating for PTSD. 659 F.3d at 1363. Along with this
request, he submitted a medical record pertaining to his psychological condition. Id. Although the
RO treated the submissions as a new claim, the Federal Circuit remanded the case for VA to
consider whether the submissions constituted new and material evidence relating to his original
14
claim, regardless of whether the submissions might otherwise support a new claim. 659 F.3d at
1367-68.
In Beraud, the claimant initially sought benefits for a headache condition in 1985; VA
denied service connection for this disability before he could respond to VA's request for additional
information. 766 F.3d at 1403. The claimant did not appeal the rating decision, but within the 1-
year appeal period, he responded to VA's request for information. Id. The RO did not take
additional action. Id. Four years later, he sought to reopen the claim; the RO denied reopening
without referring to his prior submission. Id. Following two more unsuccessful attempts to reopen
his claim, the claimant filed another claim for headaches and was granted service connection,
effective from the date of his latest claim to reopen. Id. at 1404. On appeal, the Federal Circuit
held that the intervening final decisions did not terminate the pendency of the 1985 claim,
concluding that pursuant to § 3.156(b), "VA was under an express regulatory obligation to make
a determination regarding the character of the new evidence" submitted within 1 year of the 1985
decision. Id. at 1406-07. Similar to Bond, where the additional psychological evidence related to
the claimant's initial PTSD claim, the facts in Beraud dealt only with the submission of additional
evidence involving a single disability—a headache disorder. Id. at 1403.
Moreover, the Federal Circuit in Manzanares addressed the potential applicability of Bond
and Beraud to claims for secondary service connection and concluded that neither applied. See
Manzanares, 863 F.3d at 1379. In making this determination, the Federal Circuit described its
holding in Bond: "[A] claim for increased rating must be treated as potentially 'new and material'
evidence in support [of] a pending claim for the same condition, if that evidence satisfied the new
and material evidence criteria." Id. (emphasis added) (citing Bond, 659 F.3d at 1367). The Federal
Circuit further noted that "Beraud similarly held that it was error for the VA not to consider
whether evidence submitted during the appeal period was new and material." Id. (internal quotation
marks omitted) (citing Beraud, 766 F.3d at 1407). Notably, what the Federal Circuit found
dispositive in Manzanares was that "[n]either [Bond nor Beraud] dealt with secondary service
connection, much less suggested that secondary service connection is part of a primary benefits
claim." Id. Hence, although Ms. Manzanares raised her request for secondary service connection
during the pendency of her appeal of the rating for the primary condition, the Federal Circuit
concluded that § 3.156(b) did not apply; the effective date for the secondary condition was
properly based on the date of receipt of the secondary claim. Id.
15
3. Application
Here, the Court concludes that the foregoing discussion of Manzanares, Beraud, Bond,
Ross, and Rice leads to only one conclusion: The Board did not err in the 2018 decision on appeal
by failing to assess, under § 3.156(b), whether the appellant's October 2015 submissions were new
and material evidence relating to the May 2014 claim. As stated above, and not disputed by the
appellant, the appellant's May 2014 and October 2015 submissions relate to two conditions—in
2014, he sought service connection for sleep apnea and, in 2015, he requested an increased rating
for PTSD and TDIU, which he related to his PTSD and service-connected tinnitus. Considering
the holdings in Manzanares and Ross, it is immaterial whether the 2014 claim expressly requested
benefits for sleep apnea as secondary to PTSD or whether the appellant's subsequent clarification
regarding the theory of this claim relates back to May 2014. The law is clear that claims for
secondary service connection are not claims for increased compensation and are not part and parcel
of a claim for increased compensation for the primary condition.
Thus, although the Board did not address whether the October 2015 submissions were new
and material evidence related to the May 2014 claim, a review of the Board's analysis reflects that
the Board essentially considered whether § 3.156(b) was triggered when it determined the nature
of the May 2014 claim. See R. at 7. In this regard, the Board concluded that "the claim filed on
May 30, 2014[,] was a claim for service connection for sleep apnea" and did not "mention a
psychiatric disability, to include PTSD." Id. But, even assuming the appellant's October 2015
express request for secondary service connection for sleep apnea relates back to the May 30, 2014,
filing, which, on its face, pertained only to direct service connection, the appellant has not shown
that any Board error in this regard was prejudicial. See Shinseki v. Sanders, 556 U.S. 396, 409
(2009) (holding that the harmless-error analysis applies to the Court's review of Board decisions
and that the burden is on the appellant to show that he or she suffered prejudice as a result of VA
error). In other words, the appellant has not shown that the October 2015 submissions, which
related to an increased rating for PTSD, must have been assessed under § 3.156(b) to determine
whether they were new and material evidence related to his purportedly pending claim for sleep
apnea secondary to PTSD.
Finally, the Court's conclusion here does not run afoul of VA's duty to maximize benefits,
nor does our decision in Morgan, 31 Vet.App. at 162, compel a different result. In this regard, the
Court does not agree with the appellant's contention that Morgan's discussion of VA's duty to
16
maximize benefits, including consideration of secondary service connection when evaluating a
disability, pertains to the meaning and the scope of his May 2014 claim. Reply Br. at 4; see
Morgan, 31 Vet.App. at 164. Rather, Morgan "support[s] the notion that VA is obligated to
develop and adjudicate claims for secondary service connection that are reasonably raised during
the processing of a properly initiated claim as to the primary service-connected disability's
evaluation level." Bailey v. Wilkie, 33 Vet.App. 188, 201 (2021) (emphasis added). But we are not
concerned with whether VA had a duty to develop a secondary service connection claim for sleep
apnea when evaluating the severity of the appellant's PTSD. Instead, the appellant expressly raised
a claim for sleep apnea in May 2014 and a claim for an increased rating for PTSD in October 2015;
thus, the Federal Circuit's decision in Manzanares, which addressed the relationship between
claims for primary and secondary conditions and the potential applicability of § 3.156(b) controls.
Morgan did not purport to overrule our caselaw regarding the nature of secondary service
connection claims, nor could it.
Pursuant to Manzanares and Ross, a claim for secondary service connection is not part of
every claim for service connection for the primary disability or for an increase in the primary
disability, nor is it a claim for increased compensation. See Manzanares, 863 F.3d at 1379
(concluding that a claim for secondary service connection was not part of a pending claim for an
increased rating of the primary condition and thus was not entitled to the same effective date as
the primary condition); Ross, 21 Vet.App. at 532 (holding that an award of secondary service
connection is not an award of increased compensation because it requires the incurrence of an
additional disability). Accordingly, because the appellant makes no other arguments challenging
the Board's denial of an earlier effective date for his 100% schedular rating for PTSD, and the
Court concludes that his arguments for remand based on § 3.156(b) are unavailing, the Court will
affirm the Board's decision.
IV. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, oral argument, and a
review of the record, the Board's December 20, 2018, decision is AFFIRMED.
GREENBERG, Judge dissenting: I agree with the frequently expressed sentiments of the
late Justices Ruth Bader Ginsburg and William J. Brennan Jr. in the matter of dissents:
17
Dissents speak to a future age. It's not simply to say, "My colleagues are
wrong and I would do it this way." But the greatest dissents do become court
opinions and gradually over time their views become the dominant view.
So that's the dissenter's hope: that they are writing not for today, but for
tomorrow.6
Dissent for its own sake has no value . . . . However, where significant and
deeply held disagreement exists, members of the Court have a responsibility
to articulate it. . . . Unanimity is not in and of itself a judicial virtue. . . .
Judges have no power to declare law. Courts derive legal principles and
have a duty to explain why and how a given rule has come to be. . . . [Judges]
are forced by a dissent to reconsider the fundamental questions and rethink
the result . . . . In my judgment . . . the unique interpretive role of [our
Court] with respect to the Constitution [and our authority] demands some
flexibility with respect to the call of stare decisis. . . . [We should not be]
captive to the anachronistic view of long-gone generations. . . . The right to
dissent is one of the great and cherished freedoms by reasons of the
excellent accident of our American births.
See William J. Brennan, Jr., 7 In Defense of Dissents, 37 HASTINGS L.J. 427, 427-35 (1985)
(emphasis in original); see also Bly v. McDonald, 28 Vet.App. 256, 265-66 (Greenberg, J.,
dissenting), vacated and remanded sub nom. Bly v. Shulkin, 883 F.3d 1374 (Fed. Cir. 2018); Ollis
v. McDonald, 27 Vet.App. 405, 414-15 (Greenberg, J., dissenting), aff'd in part, vacated in part,
and remanded sub nom. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017); James v. Shulkin, 29
Vet.App. 127, 130-31 (2017) (Greenberg, J., dissenting), vacated and remanded sub nom. James
v. Wilkie, 917 F.3d 1368 (Fed. Cir. 2019)(citing Henderson when noting the need for flexibility in
applying rules in the uniquely pro-claimant arena of veterans benefits law); Taylor v. Wilkie, 31
Vet.App. 147, 155-62 (Greenberg, J., dissenting).
It is undisputed that Congress intended to create the veterans benefits system as a pro-
claimant, non-adversarial system. See Shinseki v. Sanders, 556 U.S. 396, 416, 129 S.Ct. 1696, 173
L.Ed.2d 532 (2009) (Souter, J., dissenting) (noting "Congress's understandable decision to place a
6
Interview with Ruth Bader Ginsburg, Ruth Bader Ginsburg and Malvina Harland, Morning Edition (May
2, 2002, 12:00 AM), https://www.npr.org/templates/story/story.php?storyId=1142685 (timestamp 3:47-4:05).
7
Justice William J. Brennan, Jr., practiced law in New Jersey, served in the United States Army during World
War II, served on the Superior Court of New Jersey from 1949 to 1951, and served on the Supreme Court of New
Jersey until 1956, when he was nominated as a recess appointment by President Eisenhower. Justice Brennan also
expressed his strongly held view of veterans as a unique class of litigants, while adhering to customary notions of
constitutional and statutory construction. See Johnson v. Robison, 415 U.S. 361 (1974). Long before our Court was
created by Congress in 1988, Justice Brennan recognized that there was no bar to consideration of a veteran's
constitutional claim. Id. at 367.
18
thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA
decisions"). As Justice Alito has recognized, "we have long applied 'the canon that provisions for
benefits to members of the Armed Services are to be construed in the beneficiaries' favor."
Henderson v. Shinseki, 562 U.S. 428, 441 (quoting King v. St. Vincent's Hosp., 502 U.S. 215, 220-
21 n.9, 112 S.Ct. 570, 116 L. Ed. 2d 578 (1991)); see United States v. Oregon, 366 U.S. 643, 647,
81 S. Ct. 1278,6 L.Ed. 2d 575 (1961) ("The solicitude of Congress for veterans is of long
standing.")
After all, Congress codified the Secretary's duty to assist, within reason. See 38 U.S.C.
§ 5103A(a)(1). Related to that duty to assist is that "[t]he Secretary is required to maximize
benefits." Bradley v. Peake, 22 Vet.App. 280, 294 (2008). Veterans are "generally . . . presumed
to be seeking the maximum benefit allowed by law and regulation." AB v. Brown, 6 Vet.App. 35,
38 (1993); see also Tatum v. Shinseki, 23 Vet.App. 152, 157 (2009). This duty to maximize benefits
stems from 38 C.F.R. § 3.103(a), which requires VA to "render a decision which grants every
benefit that can be supported in law while protecting the interests of the Government." (emphasis
added). This includes
examining all possible rating methods in search of the highest level of established schedular
compensation . . . including, but not limited to, secondary service connection, analogous
ratings, the requirement to assign a higher schedular rating if a veteran's disability more
nearly approximates the higher rating, the requirement that VA resolve doubt in favor of
claimants, ratings based on individual unemployability, special monthly compensation, and
the ability to rate a single disability under multiple diagnostic codes without pyramiding—
are critical components of the duty to maximize benefits well before we reach an
extraschedular analysis.
Morgan v. Wilkie, 31 Vet.App. 162, 164 (2019) (citing Roberson v. Principi, 251 F.3d 1378, 1384
(Fed. Cir. 2001) ("VA must determine all potential claims raised by the evidence, applying all
relevant laws and regulations.")). With this philosophy in mind, I respectfully dissent.
Vietnam War veteran Gerry E. Gudinas served on active duty in the U.S. Army from
October 1966 to October 1968 as an indirect fire crewman, including deployment to the Republic
of Vietnam. R. at 886 (DD Form 214). The appellant earned many medals for his meritorious
service including the Combat Infantryman Badge, Air Medal, and Soldiers Medal, which was
awarded for recognizing an act of "heroism." Id, R. at 748.
19
In September 2005, the regional office granted the appellant service connection for PTSD
with a 50% disability rating effective March 23, 2005. R. at 747-52. The RO decision notes "poor
sleep" as a symptom of the appellant's PTSD and a reason for granting him a 50% disability rating.
R. at 748.
In May 2014, the appellant filed a claim for service connection for sleep apnea, R. at 456-
59, which was denied in August 2014. R. at 400-05. The RO's denial states that the appellant was
not diagnosed with sleep apnea until 2011, and thus there was no evidence that the sleep apnea
was related to service. R. at 401. The rating decision did not mention the appellant's sleep
disturbances as related to the appellant's service-connected PTSD. R. at 400-05. In September
2015, the appellant pro se filed an NOD, asserting that "regardless of the VA[-]issued CPAP
machine, I cannot get a good night[']s sleep." R. at 388-89. In October 2015, the appellant
submitted VA Form 22a, authorizing his current counsel to represent him, and noting that he was
"now filing a claim for increased compensation based on unemployability [(TDIU)]" due to his
service-connected disabilities." R. at 349-53. At this time, the appellant also submitted a TDIU
application, R. at 346-47, and his Social Security earnings record, R. at 344, as well as a
supplemental claim for an increased PTSD disability rating. R. at 340-41.
The appellant was eventually granted a 100% disability rating for his PTSD, effective
October 2015. R. at 167-74. One of the symptoms the Board found in granting a 100% disability
rating was "chronic sleep impairment." R. at 171. In November 2016, the appellant through counsel
filed another NOD, asserting that his effective date of the 100% disability rating for PTSD should
be May 2014 because his sleep apnea claim is, and should have been considered as, secondary to
his other service-connected disabilities, thus triggering an increased-rating evaluation for his
PTSD rating and the matter of TDIU. R. at 77-82. The appellant specifically argued that the May
2014 claim was still open by virtue of the September 2015 NOD, and that VA had received new
and material evidence in October 2015 by way of the TDIU application and Social Security
earnings record, thus entitling the appellant to a May 2014 effective date for his increased PTSD
disability rating. R. at 80.
In the October 2018 Board decision on appeal, the Board found that the May 2014 claim
neither mentioned nor otherwise suggested that the appellant "intended to file a claim for an
increase in the PTSD rating." R. at 7.This appeal ensued.
20
As the majority clearly and excellently explains, the appellant argues that the Federal
Circuit's rulings in Bond and Beraud required the Board to assess, per 38 C.F.R. § 3.156(c)'s "new
and material evidence" requirement, the evidence received in October 2015 as it related to the open
and pending May 2014 claim for sleep apnea. See Appellant's Br. at 7-9; see also infra section II.
The appellant next argues that once the Court made the threshold determination that § 3.156(c)
applied, the Court should expand its holding in Rice by finding that the October 2015 submissions
were "part and parcel" of the May 2014 claim, which impliedly encompassed a secondary-service-
connection claim, increased disability rating for PTSD claim, and the matter of TDIU. See infra
section II. See Appellant's Br. at 4-9; see also Oral Argument at 2:28–2:45, Gudinas v. Wlkie, U.S.
Vet. App. No. 19-2640 (oral argument held Jan. 22, 2021), https://youtu.be/tNDRzKSlllg (last
visited Mar. 18, 2021).
Though the Secretary and majority found these arguments unavailing, I believe these
arguments warranted a different outcome. First, the majority notes that in Ross this Court held a
claim for secondary service connection is not the equivalent of a claim for increased compensation.
See infra section. II.B.1. The majority also emphasizes that the Federal Circuit reached a similar
conclusion in Manzanares. Id. The majority concluded that it was "not persuaded that there is any
meaningful difference between the facts here and those in Ross and Manzanares." Id. However,
both the issue and facts do offer some distinction here.
First, the issue should be viewed from the perspective that though the veteran was
experiencing additional difficulties and symptoms, he was unaware whether these difficulties
stemmed from an alternative disability or his service-connected disability. Thus, he filed what he
reasonably believed to be the source of his sleep disturbance–a recently diagnosed ailment.
However, an in-depth examination of the record reveals several key facts: the appellant was
granted service connection for PTSD with "poor sleep" as a symptom; he filed for additional
compensation after being diagnosed with sleep apnea in 2011, and after that he was assigned a
CPAP machine, and after that was still experiencing sleep disturbances, as evidenced by his May
2014 application and September 2015 NOD; and his PTSD disability rating that was eventually
raised to 100% reveals the appellant suffers from "chronic sleep impairment." See R. at 748, 388-
89, 171. Thus, the record shows that the appellant had sleep disturbances throughout the period on
appeal and while he was diagnosed with PTSD. It even appears that because the CPAP machine
was not providing any relief, the appellant's sleep disturbances may not have been related to sleep
21
apnea. But this is a determination that neither the Court, see 38 U.S.C. § 7252, nor the Board
should make. Rather, it is a downstream determination. See Colvin v. Derwinski, 1 Vet.App. 171,
14 (1991) (holding that the Board cannot rely on its own medical judgment). Here, the veteran was
unrepresented at the time of his May 2014 filing. In October 2015, his representative, an attorney
well versed in veterans benefits and the VA system, notified VA that the appellant was seeking
several benefits in addition to what was explicitly stated in his May 2014 application for benefits.
Seemingly, a pro se veteran is being denied his due benefits because he initially attempted to
navigate the complex veterans benefits system unrepresented and in this initial application was
unable to properly identify the etiology. However, this is the responsibility of the Secretary and
VA; it is the Secretary's statutorily prescribed duty to assist veterans in reasonably developing their
claims and in maximizing their benefits. I believe this view is consistent with Congressional intent
in creating a pro-claimant system. Keeping in mind that a pro-se litigant's filings are to be
construed liberally, it seems rational, consistent, and even necessary that VA's duty to assist would
include determining whether the appellant's service-connected disabilities have progressed over
time, including whether they have affected other functions, such as sleep. See Calma v. Brown, 9
Vet.App. 11 (1996). This seems even more obvious in light of VA's oft-repeated view that veterans
are not competent to opine on etiology of disabilities that require medical expertise. See Barr v.
Nicholson, 21 Vet.App. 303, 307 (2007) (stating that "lay persons are not competent to opine on
medical etiology or render medical opinions").
These are all extremely important and distinguishing factors that the majority has
overlooked. A veteran should not be at a disadvantage by virtue of his representation, where
counsel subrogates the Secretary's role in attempting to fully maximize the appellant's benefits,
and particularly where the claimant is a decorated combat veteran. See R. at 886 (DD Form 214),
748.
The majority takes issue with the appellant's argument that "regardless of whether the claim
is framed or presented as a claim for increased schedular rating, increased rating based on
unemployability, or secondary service-connected compensation . . . the purpose of all these claims
is to increase the amount of compensation payable for the veteran's service[-]connected injury,"
see infra section II. But the appellant precisely describes the type of benefits system Congress
intended to create, and thus we would be within our congressional mandate to create new caselaw
as the appellant excellently argued.
22
Unfortunately, the majority felt unduly restricted by our precedent, and declined to revisit
our caselaw to emphasize this underutilized maxim of veterans benefits law. Well-established
judicial philosophy notes that courts are always open to fashion a remedy. Going further, if the
creators of a legislative scheme gave a class of people any rights, administrators of that law should
uphold that right, and should not limit its effectiveness. See Driscoll v. Burlington Bridge Co., 8
N.J. 433, 86 A.2d 201 (1952) (Vanderbilt, C.J.); see also Johnson v. Christ Hosp., 45 N.J. 108,
113, 211 A.2d 376, 379 (1965) (per curiam), aff'd for reasons stated below, 84 N.J. Super. 541,
202 A.2d 874 (1964) (Matthews, Ch. Div.); see also Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886)
(Matthews, J). Thus, while I appreciate and understand the importance of precedent, I believe the
intent of Congress and the overarching canon of veterans benefits law should have led to an
alternative outcome in favor of the veteran.
For the foregoing reasons, I respectfully dissent.
23