The opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3543
PHILLIP G. CLINE , APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued June 13, 2012 Decided August 16, 2012)
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Shanti L. Hageman, Appellate Attorney; with whom Will A. Gunn, General Counsel; R.
Randall Campbell, Assistant General Counsel; and Justin P. Zimmer, Acting Deputy Assistant
General Counsel; all of Washington, D.C., joined, for the appellee.
Before HAGEL, LANCE, and DAVIS, Judges.
HAGEL, Judge, filed the opinion of the Court. LANCE, Judge, filed a dissenting opinion.
HAGEL, Judge: Phillip G. Cline appeals through counsel a July 1, 2010, Board of Veterans'
Appeals (Board) decision that granted entitlement to an initial disability rating of 70%, but no higher,
for post-traumatic stress disorder, effective May 6, 1999, but no earlier.1 Mr. Cline's Notice of
Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C.
§ 7252(a). Because the Board improperly applied amended 38 C.F.R. § 3.156(c)(2) retroactively,
the Court will vacate that portion of the July 2010 Board decision that determined that an effective
date prior to May 6, 1999, was not warranted and remand that issue for readjudication consistent
1
The Board also remanded the matter of entitlement to a total disability rating based on individual
unemployability, and that matter is not before the Court at this time. See 38 U.S.C. § 7266 (stating that the Court reviews
only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (Board remand does
not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b) (1999))).
with this decision. Because the Board properly considered and applied all applicable laws and
regulations concerning the proper disability rating to be assigned for post-traumatic stress disorder,
the Court will affirm the remainder of the Board decision.
I. FACTS
Mr. Cline served on active duty in the United States Army from July 1970 to March 1972,
including service in Viet Nam.
In January 1993, Mr. Cline sought entitlement to benefits for post-traumatic stress disorder.
The following month, he submitted a post-traumatic stress disorder stressor questionnaire identifying
several stressors. In response to the question, "Did you have any civilian friends killed, wounded,
or executed," Mr. Cline stated that a "friend drowned" while Mr. Cline was stationed with the 25th
Infantry, 3rd Squadron, 17th Air Cavalry, but he did not identify the friend by name. Record (R.)
at 1920. In response to the question "How many civilians were involved," Mr. Cline wrote zero.
Id.
At a May 1993 VA examination, Mr. Cline reported to the examiner that, while he was in
Viet Nam, his unit underwent numerous rocket and mortar attacks and he witnessed many people
wounded, maimed, and killed. The examiner ultimately concluded that, although it was possible that
Mr. Cline previously had a "mild case" of post-traumatic stress disorder, "it would appear that he no
longer has sufficient symptoms to warrant the diagnosis." R. at 761. In June 1993, based largely on
this examination report, a VA regional office denied Mr. Cline's claim for benefits. Mr. Cline did
not appeal that decision, and it became final.
In May 1999, Mr. Cline sought to reopen his claim for benefits for post-traumatic stress
disorder. In September 1999, the regional office determined that Mr. Cline had not submitted new
and material evidence establishing a diagnosis of post-traumatic stress disorder or a confirmed
stressor and therefore declined to reopen the claim.
A March 2000 VA progress note contains a diagnosis of post-traumatic stress disorder. As
a basis for that diagnosis, the examiner recorded the following:
The patient reports recurrent, intrusive distressing recollections of being in Vietnam.
The patient reports that his dreams are "about my buddy that got killed." The
patient's friend (Butch) was killed when he was out on a mission and drowned.
2
When the body was brought back to the unit, the patient requested to see the body
one more time before it was prepared for departure to the United States. The patient
remembers, "They unzipped the bag. He drowned. They had to send the Seals out
to get him. I thought I wanted to see him before he went home. It was not a good
idea." The patient cannot forget the disfigurement of his friend.
R. at 1796.
In July 2000, Mr. Cline submitted a post-traumatic stress disorder questionnaire in which he
reported that his friend "Butch" was killed two weeks before his tour of duty was up. R. at 1764-66.
In March 2001, the regional office asked Mr. Cline to "better identify the soldier" he referred to as
"Butch." R. at 1735; see also R. at 1737 (December 2000 deferred rating decision). It does not
appear that Mr. Cline responded to that request. In January 2002, the regional office denied
entitlement to benefits for post-traumatic stress disorder because "there is no corroborated stressor
basis for a diagnosis of this condition." R. at 1728. Mr. Cline filed a Notice of Disagreement with
that decision and ultimately appealed to the Board.
In August 2003, Mr. Cline sent a statement to VA outlining numerous claimed stressors. At
that time, he identified "Butch" as Robert Clifton. R. at 1504. In March 2005, VA sought to
corroborate Mr. Cline's account via the Center for Unit Records Research. In July 2005, VA
received the following response:
Our U.S. Army casualty data base reports Specialist Four Robert Clifton was
drowned on October 23, 1971. Specialist Clifton was assigned to Alpha Troop 3rd
Squadron[,] 17th Air Cavalry[,] located at Dí An, Republic of South Vietnam, at the
time of his death. This was also Mr. Cline's unit of assignment during his tour in the
Republic of Vietnam.
R. at 1067. In September 2005, a VA examiner confirmed Mr. Cline's diagnosis of post-traumatic
stress disorder based on the drowning of a fellow soldier, "the only stressor that has been verified."
R. at 1001.
In February 2006, based on confirmation of Mr. Cline's claimed stressor and resulting
confirmed diagnosis, the regional office granted entitlement to benefits for post-traumatic stress
disorder and assigned a 30% disability rating, effective April 24, 2000. Mr. Cline filed a Notice of
Disagreement with that decision.
3
In January 2008, after several interim decisions, the regional office ultimately issued a
Statement of the Case granting an effective date of May 6, 1999, for the initial award of benefits for
post-traumatic stress disorder, assigning a 50% disability rating for that condition effective from that
date, and assigning a 70% disability rating from January 22, 2007. Mr. Cline appealed to the Board.
In July 2010, the Board issued the decision on appeal. With respect to the effective date for
the initial award of benefits for post-traumatic stress disorder, the Board considered whether the
response from the Center for Unit Records Research regarding the death of Specialist Clifton could
satisfy 38 C.F.R. § 3.156(c)(1), which permits an effective date as of the original date of the claim
(here, January 1993) in cases where service department records later associated with the claims file
form the basis of the ultimate award of benefits. The Board concluded that, while the response from
the Center for Unit Records Research was "likely the type of information contemplated" by the
regulation (R. at 13), Mr. Cline's situation was more properly considered under § 3.156(c)(2), which
states that subsection (a) does not apply where "the claimant failed to provide sufficient information
for VA to identify and obtain the records." In particular, the Board found that Mr. Cline did not
provide sufficient information in January 1993 for VA to attempt to corroborate his claimed
stressor–seeing a friend or fellow soldier drown–with the Center for Unit Records Research. The
Board stated that, although Mr. Cline did reference a friend's drowning at the time of his January
1993 application, he "did not provide the names of any casualties at that time and he stated that the
names of any casualties were unknown." R. at 13-14.
With respect to the disability ratings assigned for post-traumatic stress disorder, the Board
reviewed the medical evidence of record and determined that a 70% disability rating was warranted
for the period prior to January 21, 2007, but that no higher disability rating was warranted at any
time.
II. ANALYSIS
A. Earlier Effective Date
On appeal, Mr. Cline first contends that the Board erred in finding that an earlier effective
date was not warranted because the Board failed to correctly apply 38 C.F.R. § 3.156(c).
Specifically, Mr. Cline asserts that the Board "mistakenly concluded" that the exception of
4
§ 3.156(c)(2) applies to his case and "mistakenly attempted to distinguish" Vigil v. Peake,
22 Vet.App. 63 (2008), which Mr. Cline contends was rejected by the Court in Mayhue v. Shinseki,
24 Vet.App. 273 (2011). Appellant's Brief (Br.) at 3-4.
The Board determined that Mr. Cline first submitted the necessary information to verify his
claimed stressor–that is, the name of his friend who drowned–some time after he submitted his May
6, 1999, request to reopen.2 R. at 14. As a result of receiving this information, the regional office
granted his claim for benefits for post-traumatic stress disorder in an February 2006 rating decision
and ultimately assigned an effective date of May 6, 1999. It is clear, then, that Mr. Cline submitted
his claim to reopen, provided the information necessary to verify his stressor, and was awarded
benefits all prior to October 2006 when amendments to § 3.156(c), including the addition of
subsection (c)(2) discussed below, took effect. Therefore, the Board's application of § 3.156(c)(2)
in this case is only proper if it applies retroactively to claims pending when the amendments took
effect.
1. History of 38 C.F.R. § 3.156(c)
a. Regulatory History
To address this question, the Court must first consider the history of 38 C.F.R. § 3.156(c).
In February 2006, when Mr. Cline was initially awarded benefits for post-traumatic stress disorder
and assigned an April 2000 effective date, 38 C.F.R. § 3.156(c) provided, in pertinent part:
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 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
commission or omission in the preparation of the prior report or reports and
2
The Board's discussion is oddly opaque on this point, but it has not escaped the Court's notice that Mr. Cline
did not actually provide Specialist Clifton's name until 2003. R. at 1504. The Board does not explain why, if Mr.
Clifton's name was the crucial piece of information needed to permit VA to seek corroborating records from the service
department, an effective date of April 2003 was not more appropriate. Nevertheless, because of the Court's finding
regarding the inapplicability of amended § 3.156(c)(2) and the fact that the Board's assignment of a May 1999 effective
date is favorable to Mr. Cline, the Court need not concern itself further with the Board's vague discussion. See McClain
v. Nicholson, 21 Vet.App. 319 (2007) (holding that the Court may not overturn uncontested favorable findings of the
Board). The Court reminds the Board, however, that it is required to provide an adequate statement of reasons or bases
for all of its conclusions. 38 U.S.C. § 7104(d)(1).
5
identified as such. . . . 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) (emphasis added). At that time, 38 C.F.R. § 3.400(q)(2) provided that,
when the new and material evidence submitted was service department records, the effective date
of the claim would be: "To agree with evaluation (since it is considered these [service department]
records were lost or mislaid) or date of receipt of claim on which prior evaluation was made,
whichever is later, subject to rules on original claims filed within 1 year after separation from
service." 38 C.F.R. § 3.400(q)(2) (2005). The Secretary has previously summarized the relationship
between these provisions as follows: "In practice, when VA receives service department records that
were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the
effective date assigned will relate back to the date of the original claim, or the date entitlement arose,
whichever is later."3 70 Fed. Reg. 35,388, 35,388 (June 20, 2005).
In June 2005, the Secretary proposed to amend § 3.156(c) "to establish clearer rules regarding
reconsideration of decisions on the basis of newly discovered service department records" and "to
include the substance of current 38 C.F.R. 3.400(q)(2) in revised § 3.156(c)." Id. Of particular
importance to this appeal, the Secretary added § 3.156(c)(1) which provides:
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 relevant official service
department records that existed and had not been associated with the claims file when
VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph
(a) of this section.
38 C.F.R. § 3.156(c)(1) (2010).4 In the proposed rule, the Secretary explained that § 3.156(c)(1)
specifically applied to "unit records, such as those obtained from the Center for Research of Unit
3
Although the Secretary's explanation implies a degree of discretion on his part in undertaking such
reconsideration, stating that VA "may" reconsider its prior decision, the 2005 regulation is clear that such reconsideration
was mandatory when service department records were added to the file (i.e., "the former decision will be reconsidered
. . . .").
4
Paragraph (a), which is not relevant here, provides that "a claimant may reopen a finally adjudicated claim
by submitting new and material evidence" and defines "new evidence" and "material evidence." 38 C.F.R. § 3.156(a)
(2012).
6
Records (CRUR) that pertain to military experiences claimed by a veteran. Such evidence may
be particularly valuable in connection with claims for benefits for post traumatic stress disorder."
70 Fed. Reg. at 35,388. Section 3.156(c)(1)'s broad statement was limited by the creation of
§ 3.156(c)(2), which provides:
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 claimant failed to provide sufficient 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 source.
38 C.F.R. § 3.156(c)(2) (2010) (emphasis added). As the Secretary explained, "[t]his limitation
would allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the
basis that a claimant should not be harmed by an administrative deficiency of the government, but
limited by the extent to which the claimant has cooperated with VA's efforts to obtain these records."
70 Fed. Reg. at 35,388 (emphasis added). The amendments to § 3.156(c) became effective on
October 6, 2006, and were not expressly made retroactive. See 71 Fed. Reg. 52,455 (Sept. 6, 2006).
Consequently, prior to October 2006, the effective date of the amended regulation, there was no
limitation on VA's ability to reconsider previously decided claims in light of the submission of new
and material service department records.
b. Vigil v. Peake
In Vigil, as the Board discussed, the veteran was denied entitlement to benefits for post-
traumatic stress disorder after a VA examiner determined that he did not suffer from that condition.
After he sought to reopen his claim and submitted evidence of a current diagnosis, he was granted
benefits for post-traumatic stress disorder when evidence was obtained from the United States
Armed Services Center for Research of Unit Records (now known as the Army & Joint Services
Records Research Center). The Center for Research of Unit Records provided the regional office
with unit records describing an explosion at an ammunition dump that the veteran previously
described as one of his stressors. The regional office relied, in part, on those records to award
benefits, as the information in the records served to verify and support the veteran's claimed in-
service stressor. The regional office assigned an effective date as of the date of the claim to reopen,
and the veteran appealed.
7
In its decision, which was rendered under the pre-amendment version of § 3.156(c), the
Board determined that § 3.156(c) did not apply, and therefore no reconsideration was required,
because the records obtained and ultimately relied upon had not been misplaced or erroneously
omitted and were therefore not the types of records contemplated by the regulation and because there
was no diagnosis of post-traumatic stress disorder at the time of the original decision denying the
veteran's claim.
On appeal, the Court applied the clarifying statements contained in the Secretary's proposed
rule and held that pre-amendment § 3.156(c), like amended § 3.156(c)(1) and (c)(3), "authorize[d]
an effective date [for a claim reconsidered based on newly discovered service department records]
as early as the date of the original claim up to the date of the claim to reopen." Vigil, 22 Vet.App
at 65. Accordingly the Court concluded that the Board erred in finding that § 3.156(c) was
inapplicable to the veteran's claim and remanded for the Board to apply that regulation. In so
deciding, the Court accepted the parties' agreement that the clarifying statements in the proposed rule
amending § 3.156(c) "should govern the interpretation of the pre-amended § 3.156(c), wherever
relevant in this case." Id. (emphasis added). The Court then explained that the clarifying statements
in the proposed rule were relevant only insofar as they established that
(A) Applicability of [pre-amendment] § 3.156(c) did not depend on whether the
newly acquired service records were corrected records or had been misplaced at the
time a claim was filed, (B) [pre-amendment] § 3.156(c) authorize[d] an effective date
as early as the date of the original claim up to the date of the claim to reopen, and (C)
application of [pre-amendment] § 3.156(c) require[d] a retroactive evaluation of
disability.
Id. The Court explicitly limited its analysis of the clarifying statements in the proposed rule to these
three issues and did not address whether it was VA's practice under pre-amendment § 3.156(c) to
prohibit reconsideration of a previously denied claim on the basis of newly associated service
department records where the claimant did not provide sufficient information for VA to identify and
obtain the records from the respective service department at the time that the claim was initially
decided. Id. The facts of Vigil simply did not raise this issue. In addition, the Court explicitly stated
that it was not holding that amended § 3.156(c) was retroactive, or even that § 3.156(c) was
applicable in that case:
8
Contrary to the view of our dissenting colleague, we are not holding that [pre-
amendment] § 3.156(c) warrants an earlier effective date in this case or all cases that
are denied for a lack of diagnosis and later reopened and granted, in part, on service
records not obtained previously, or that [pre-amendment] § 3.156(c) necessarily is
for application here. Rather, we are holding that the Board's decision that [pre-
amendment] § 3.156(c) does not apply to Mr. Vigil's claim rests on a faulty premise.
Vigil, 22 Vet.App. at 66 n.3.
c. Mayhue v. Shinseki
In Mayhue, the veteran argued that the Board erroneously applied the amended version of
§3.156(c) to his claim retroactively, and, alternatively, that if the amended version did apply, he did
not fall within the purview of subsection (c)(2).
The Court extensively recounted the history of § 3.156(c) and, in discussing new
§§ 3.156(c)(1) and (c)(3), stated that those amendments "were not intended to be substantive changes
to VA's well-established practice of reconsidering claims based on newly discovered service
department records and assigning an effective date as early as the date that the initial claim was
filed." Mayhue, 24 Vet.App. at 278. After analyzing Vigil, the Court in Mayhue stated: "[U]nder
either pre-amendment or amended § 3.156(c), a claimant whose claim is reconsidered based on
newly discovered service department records may be entitled to an effective date as early as the date
of the original claim." Id. at 279. The Court in Mayhue expressly declined to address the question
of retroactivity squarely raised by Mr. Cline in this case because it found that the information that
VA ultimately relied upon to obtain the service department records that formed the basis for granting
Mr. Mayhue's claim had been in Mr. Mayhue's claims file all along. The Court, therefore, also did
not consider whether the addition of § 3.156(c)(2) amounted to a substantive change in regulation.
Id. ("Even assuming the Secretary's view that § 3.156(c)(2) . . . codified VA's long-standing practice
of limiting reconsideration of claims based on a claimant's lack of cooperation–the view least
favorable to the veteran–the Court finds that § 3.156(c)(2) was not for application in this case.").
We will now do so.
Substantive rules "'grant rights, impose obligations, . . . [and] narrowly constrict the
discretion of agency officials by largely determining the issue addressed,'" whereas interpretative
rules "'express the agency's intended course of action or its tentative view of the meaning of a
9
particular statutory term'" and do not "'foreclose alternative courses of action or conclusively affect
rights of private parties.'" Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 908-09 (5th
Cir. 1983) (quoting Batterton v. Marshall, 648 F.2d 694, 701-02 (D.C. Cir. 1980) (footnotes
omitted)); see also Paralyzed Veterans of America v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998)
(stating that interpretative rules are those that clarify or explain existing law or regulation); Air India
v. Brien, 261 F. Supp. 2d 134, 141 (E.D.N.Y. 2003) (stating that substantive rules create new law,
rights, or duties, in what amounts to a legislative act, while interpretive rules merely clarify an
existing statute or regulation). Here, although the Secretary asserted at oral argument that the
addition of subsection (c)(2) was merely intended as clarification of past practice, there is simply no
evidence that this is so. In proposing the addition of subsection (c)(2), the Secretary wrote:
We propose in § 3.156(c)(2) to limit the application of this rule by stating that it
"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 the claimant failed
to provide VA sufficient information for VA to identify and obtain the records from
the respective service department, the Center for Research of Unit Records, or from
any other official source." Reconsideration based upon service department records
would not be available in cases where the claimant did not provide information that
would have enabled VA or another federal agency to identify and search for relevant
records. This limitation would allow VA to reconsider decisions and retroactively
evaluate disability in a fair manner, on the basis that a claimant should not be harmed
by an administrative deficiency of the government, but limited by the extent to which
the claimant has cooperated with VA's efforts to obtain these records.
70 Fed. Reg. at 35,389 (emphasis added). There is no indication in this statement that it had been
VA's regular practice to decline to reconsider prior claims where claimants were found to have
provided incomplete evidence. In fact, the use of the auxiliary verb "would" indicates what VA
anticipated would happen in the future because of this change.
Additionally, the Court need not accept VA's characterization of the action. See Hemp Indus.
Ass'n v. Drug Enforcement Admin., 333 F.3d 1082, 1087 (9th Cir. 2003). The plain language of
§ 3.156(c)(2), when compared to the plain language of pre-amendment § 3.156(c), created a bar to
reconsideration based on newly associated service department records in particular circumstances
where absolutely no bar previously existed. Accordingly, the Court concludes that the addition of
subsection (c)(2), effective October 2006, was a substantive rule change. Having found the change
10
in regulation to be substantive, we now consider whether amended § 3.156(c)(2) may be applied
retroactively, as the Board did here.
2. Retroactivity
As an initial matter, the Court notes that "[r]etroactivity is not favored by the law," and
"congressional enactments and administrative rules will not be construed to have retroactive effect
unless their language requires this result." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988). In Princess Cruises, Inc. v. United States, the United States Court of Appeals for the Federal
Circuit (Federal Circuit) announced three factors that the Court must weigh to determine whether
a regulation should be given retroactive effect: (1) "'the nature and extent of the change of the law;'"
(2) "'the degree of connection between the operation of the new rule and a relevant past event,'"
(3) and "'familiar considerations of fair notice, reasonable reliance, and settled expectations.'"
397 F.3d 1358, 1364 (Fed. Cir. 2005) (quoting Landgraf v. USI Film Products, 511 U.S. 244, 270
(1994)). In the instant case, each of these factors weighs against giving retroactive effect to amended
§ 3.156(c).
First, the nature and extent of the change in law is substantial. As discussed above, when
§ 3.156(c)(2) became effective in October 2006, it created a bar to reconsideration of claims based
on the submission of new and material service department records where none had previously
existed–that is, VA was no longer required to reconsider claims where the claimant failed to provide
sufficient information to identify and obtain the service department records. Creating a complete
bar to reconsideration where no limitation of any kind existed before is analogous to the "large
change in the law" found in Princess Cruises where the U.S. Bureau of Customs and Border
Protection imposed a 100% harbor maintenance tax on cruise ships where there had previously been
none. See 397 F.3d at 1364-65; cf. Tarver v. Shinseki, 557 F.3d 1371, 1375 (Fed. Cir. 2009) (holding
that a change in the law governing dependency and indemnity compensation claims was not
significant because the amended regulation merely reinstated VA's earlier interpretation of a statute);
Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008) (same). Accordingly, the nature and extent of
the change in law is substantial and weighs strongly against giving retroactive effect to amended
§ 3.156(c).
11
There is also a high degree of connection between the operation of the new rule and a
relevant past event. In Princess Cruises, the amount of harbor maintenance tax that the cruise line
would have to pay hinged on how many passengers either disembarked or boarded at layover ports
subject to the tax, and, prior to the imposition of this tax, the cruise line never had to collect or
maintain this data. 397 F.3d at 1366. Accordingly, the Federal Circuit found that the degree of
connection was strong because application of the new law to the previous conduct would necessarily
result in the cruise line being overcharged because it could not retroactively obtain the information
necessary for a proper assessment. Id. Likewise, retroactive application of § 3.156(c)(2) would
necessarily impose a penalty on Mr. Cline for conduct that was not previously prohibited.5
Therefore, there is a high degree of connection between the operation of amended § 3.156(c)(2) and
Mr. Cline's submission of information in connection with his claim to reopen his previously denied
claim for benefits for post-traumatic stress disorder.
Finally, familiar considerations of fair notice, reasonable reliance, and settled expectations
counsel against giving amended § 3.156(c)(2) retroactive effect. Here, the Secretary made the
amendments to § 3.156(c) effective October 2006 and did not specifically make them retroactive.
See 71 Fed. Reg. at 52,455. As the Supreme Court explained in Landgraf, "[e]lementary
considerations of fairness dictate that individuals should have an opportunity to know what the law
is and to conform their conduct accordingly; settled expectations should not be lightly disrupted."
511 U.S. at 265. Mr. Cline was not given notice of any kind that the Secretary intended to create a
new bar to reconsideration before he ultimately provided information sufficient to verify his stressor.
Accordingly, the familiar considerations of fair notice, reasonable reliance, and settled expectations
also weigh in Mr. Cline's favor.
Consequently, because all three Princess Cruises factors weigh against giving retroactive
effect to amended § 3.156(c)(2), the Court concludes that the Board erred in retroactively applying
that regulation's exception to deny Mr. Cline entitlement to an earlier effective date for his service-
5
For purposes of this analysis, the Court assumes, without deciding, that Mr. Cline failed to provide sufficient
information in January 1993 for VA to identify and obtain his service department records because if he had, § 3.156(c)(2)
would not apply. See Mayhue, 24 Vet.App. at 279; 38 C.F.R. § 3.156(c)(2) (2012).
12
connected post-traumatic stress disorder.6 Accordingly, the Court will vacate that part of the Board's
decision that denied entitlement to an earlier effective date for post-traumatic stress disorder and
remand the matter for the Board to apply 38 C.F.R. § 3.156(c) (2005). Specifically, the Board must
determine the proper effective date for Mr. Cline's award of benefits for post-traumatic stress
disorder, irrespective of the date on which he provided sufficient information for VA to obtain the
service department records, and which may be as early as the date of the original claim. See Mayhue,
24 Vet.App. at 279; Vigil, 22 Vet.App at 65; 38 C.F.R. § 3.156( c)(3) (2012); 38 C.F.R. § 3.400(q)
(2005). On remand, Mr. Cline is free to submit additional evidence and argument in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi,
16 Vet.App. 529, 534 (2002).
B. Disability Rating
Mr. Cline also argues that the Board erred in denying a higher initial disability rating for post-
traumatic stress disorder. In that regard, he contends that the Board failed to correctly apply
38 C.F.R. § 4.3, which provides:
It is the defined and consistently applied policy of the Department of Veterans Affairs
to administer the law under a broad interpretation, consistent, however, with the facts
shown in every case. When after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding the degree of disability such
doubt will be resolved in favor of the claimant.
Mr. Cline's argument focuses on three Global Assessment of Functioning7 scores under 50 that had
been assigned, see R. at 1445 (score of 40), 749 (score of 45), 486 (score of 40), and contends that
they "supported the assignment of a 100% [disability] rating," as opposed to the 70% disability rating
the Board assigned. Appellant's Br. at 13. He argues that these scores "raise[] a reasonable doubt
regarding the degree of disability of [his] service[-]connected psychiatric disability." Id.
The Court reviews the Board's application of the benefit of the doubt rule under the "clearly
erroneous" standard of review. See Roberson v. Principi, 17 Vet.App. 135, 146 (2003). Although
6
Because the amended version of § 3.156(c)(2) does not apply retroactively, the Court need not address Mr.
Cline's alternative argument regarding the sufficiency of the information he provided to VA.
7
A Global Assessment of Functioning score represents "the clinician's judgment of the individual's overall level
of functioning" and is "useful in planning treatment and measuring its impact[ ] and in predicting outcome." DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS 30 (4th ed. 1994); see Richard v. Brown, 9 Vet.App. 266, 267 (1996).
13
Mr. Cline is correct that the record contains three Global Assessment of Functioning scores below
50, and that these scores are probative because they relate to the veteran's level of impairment as
contemplated by the rating criteria for mental disorders, they are not dispositive of the proper level
of disability. See Massey v. Brown, 7 Vet.App. 204, 207 (1994).
Here, the Board considered all of Mr. Cline's Global Assessment of Functioning scores,
along with evidence of his actual post-traumatic stress disorder symptoms. See 38 C.F.R. § 4.126(a)
(2012) ("When evaluating a mental disorder, the rating agency shall consider the frequency, severity,
and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for
adjustment during periods of remission. The rating agency shall assign an evaluation based on all
the evidence of record ."). In fact, the Board assigned a 70% disability rating for the entire rating
period in part because of Mr. Cline's Global Assessment of Functioning scores of 40 and 45. See
R. at 20-21. To the extent that Mr. Cline contends that Global Assessment of Functioning scores
below 50 necessarily correlate to a 100% disability rating, he argues with the way in which the Board
weighed the evidence but does not demonstrate that the Board clearly erred in this regard. See
Owens v. Brown, 7 Vet.App. 429, 433 (1995).
Moreover, to the extent that the Board did not expressly state that there was no reasonable
doubt regarding the proper disability rating, Mr. Cline has not demonstrated a requirement that the
Board do so. Further, it is clear from the Board's extensive discussion of the evidence and the
criteria for the various disability ratings for post-traumatic stress disorder that there was no
reasonable doubt in this regard. Mr. Cline has also not demonstrated that he has been harmed in any
way by the Board's failure to expressly state that it had considered and applied § 4.3. See Conway
v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) (requiring the
Court to "take due account of the rule of prejudicial error").
Finally, Mr. Cline argues that the Board failed to correctly apply 38 C.F.R. § 4.7, which
requires assignment of a higher disability rating where "the disability picture more nearly
approximates the criteria required for that rating." 38 C.F.R. § 4.7 (2012). As discussed above,
however, the Board extensively considered the evidence of record and expressly explained its
determination that Mr. Cline's disability picture "more nearly approximates" a 70% disability rating.
See R. at 20-22. Mr. Cline again merely disagrees with the way in which the Board weighed the
14
evidence. He has not demonstrated that the Board's determination is clearly erroneous or is
unsupported by adequate reasons or bases. See 38 U.S.C. § 7104(d)(1); Owens, 7 Vet.App. at 433;
Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
III. CONCLUSION
Upon consideration of the foregoing, that portion of the July 1, 2010, Board decision that
denied entitlement to an effective date prior to May 6, 1999, for the award of benefits for post-
traumatic stress disorder is VACATED and the claim is REMANDED for readjudication consistent
with this decision. The remainder of the Board decision is AFFIRMED.
LANCE, Judge, dissenting in part: I fully agree with the majority that Mr. Cline is not
entitled to an increased disability rating for his post-traumatic stress disorder (PTSD). However, as
I believe that amended § 3.156(c)(2) does not have an impermissible retroactive effect, I would
affirm, rather than remand, the Board's determination as to the proper effective date for the award
of service connection for PTSD, and so I must respectfully dissent on that issue.
When VA amended § 3.156(c), it did not do so in a vacuum. Rather, as the Secretary made
clear in his Federal Register notice proposing the amended regulation, VA's intent was to combine
the provisions of § 3.156(c) with those of § 3.400(q)(2) and, in so doing, clarify existing VA practice
to preclude a less favorable reading of those regulations. See 70 Fed. Reg. 35,388, 35,388 (June 20,
2005) ("We propose to include the substance of current [§] 3.400(q)(2) in revised § 3.156(c).").
Thus, to ascertain whether § 3.156(c)(2) represents a substantive change, it must be compared not
just to pre-amendment § 3.156(c) but also to § 3.400(q)(2).
Pre-amendment § 3.400(q)(2), which governs the effective date for service connection after
the discovery of previously unavailable service department records, states that VA will grant an
earlier effective date on the basis of relevant service department records "since it is considered these
records were lost or mislaid." 38 C.F.R. § 3.400(q)(2) (2005); see also § 3.156(c) (2005) ("This
comprehends official service department records which presumably have been misplaced and have
now been located and forwarded to [VA]."). In other words, under the plain language of pre-
amendment §§ 3.156(c) and 3.400(q)(2), entitlement to an earlier effective date on the basis of newly
15
discovered service records hinges on whether those records were lost or missing at the time of the
original decision.
Nothing in the regulatory history contradicts this plain meaning; indeed, the Secretary's
statements indicate that he intended the amendments to liberalize, not restrict, the situations under
which a claimant could be entitled to an earlier effective date:
Even though the current language can be read as a limitation, in practice, VA does
not limit its reconsideration to "misplaced" service department records. Rather, VA
intended the reference to misplaced records as an example of the type of service
department records that may have been unavailable when it issued a decision on a
claim. The proposed revision to § 3.156(c) removes this ambiguity.
70 Fed. Reg. at 35,388 (emphasis added); see also Auer v. Robbins, 519 U.S. 452, 461–62 (1997)
(noting that deference must be afforded to an agency's interpretation of a regulation); Smith v.
Nicholson, 451 F.3d 1344, 1349–50 (Fed. Cir. 2006) (the Secretary's interpretation of his own
regulations is "'of controlling weight unless it is plainly erroneous or inconsistent with the
regulation'" (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945))).
In short, both the plain meaning of the regulations and the Secretary's statements of intent
make clear that the 2006 amendments were intended to liberalize § 3.156(c) to reflect VA practice,
and that § 3.156(c)(2), rather than creating a bar to existing relief, was designed only to limit the
reach of the liberalization. The majority ignores this distinction by focusing on the use of the word
"would" in the Secretary's description of the effects of amended § 3.156(c)(2), see ante at __.
However, when viewed in light of my analysis above, it is clear that use of the word "would" merely
signifies the Secretary's intent to limit the scope of the proposed liberalization.
Neither Vigil v. Peake, 22 Vet.App. 63 (2008), nor Mayhue v. Shinseki, 24 Vet.App. 273
(2011), contradict this view. In Vigil, the Court held only that unit records fell within the category
of records contemplated by pre-amendment § 3.156(c). 22 Vet.App. at 66. It did not, however,
interpret the provisions of § 3.400(q)(2), nor did it discuss under what situations § 3.156(c) was for
application. Compare id. at 66 n.3 ("[W]e are not holding that § 3.156(c) warrants an earlier
effective date in this case . . . or that § 3.156(c) necessarily is for application here.") with id. at 67
(Lance, J., dissenting) ("I believe that unavailable service records are those that VA had a duty to
16
seek and, for whatever reason, was not able to obtain."). Similarly, Mayhue, as the majority notes,
explicitly declined to reach the issue of whether amended § 3.156(c)(2) has an impermissible
retroactive effect. 24 Vet.App. at 279.
Thus, as I read pre-amendment §§ 3.156(c) and 3.400(q)(2), VA technically had no duty to
readjudicate claims based on newly discovered service department records unless those records were
lost or unavailable at the time of the original decision. Given this interpretation of these regulations,
I would hold that amended § 3.156(c)(2) does not have an impermissible retroactive effect, as it does
not represent a departure from the pre-amendment regulations. In particular, reading pre-amendment
§§ 3.156(c) and 3.400(q)(2) as applying only to records that were lost or missing at the time of the
original decision forecloses application of those regulations to records that were not before VA for
other reasons, such as negligence on the part of the Department of Defense or National Archives and
Records Administration in forwarding records to VA, failure by VA to request adequately identified
records, or where VA had no duty to obtain the records, either due to a claimant's failure to
adequately identify records or because the duty did not otherwise arise.
Although the Secretary specifically clarified that amended § 3.156(c) applied in cases of
administrative error, he did not extend this liberalization to records not obtained by VA due to an
appellant's failure to adequately identify them. See 70 Fed. Reg. at 35,389 ("This limitation would
allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis
that a claimant should not be harmed by an administrative deficiency of the government."). Thus,
in cases where an appellant did not adequately identify relevant unit records, neither the pre-
amendment nor amended regulations allows for an earlier effective date on the basis of those records,
and so amended § 3.156(c)(2) does not represent a change in the substance of the law.
Here, there is no indication that the appellant's unit records were lost or missing at the time
of the 1993 decision. Rather, VA simply had no duty to obtain those records. Under the laws and
regulations at the time of the 1993 decision, VA had no duty to assist a claimant unless there was
a well-grounded claim. See Morton v. West, 12 Vet.App. 477, 486 (1999), withdrawn, Morton v.
Gober, 14 Vet.App. 174 (2000) (per curiam order), and superseded by statute, Veterans Claims
Assistance Act of 2000 (VCAA), Pub L. No. 106-475, 114 Stat. 2096, as recognized in Duenas v.
Principi, 18 Vet.App. 512 (2004). For a claim to be well grounded, the record had to contain (1)
17
medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay
evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of
a nexus between the asserted in-service injury or disease and the current disability. See Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table),
superseded by statute, VCAA, as recognized in Duenas, supra. Absent a diagnosis of PTSD, the
appellant's claim was not well grounded, and so VA had no duty to assist him in obtaining his unit
records. See Morton and Caluza, both supra.
In the alternative, even were I to read the 1993 RO decision as implicitly finding that the
appellant's claim was well grounded, I would hold that the Board did not clearly err when it
determined that VA lacked sufficient information in 1993 to verify the appellant's stressor. R. at 13;
see 38 U.S.C. § 7261(a)(4); Hood v. Shinseki, 23 Vet.App. 295, 299 (2009) (holding that the Court
reviews the Board's factual findings under the "clearly erroneous" standard). In either case, VA had
no duty to obtain the appellant's unit records at the time of the 1993 decision, and so neither pre-
amendment nor current § 3.156(c) is for application. See 38 C.F.R. § 3.159(c)(2)(i) (2012) ("The
claimant must cooperate fully with VA's reasonable efforts to obtain relevant records" by providing
"enough information to identify and locate the existing records"); 38 C.F.R. § 3.159(b) (1993)
("When information sufficient to identify and locate necessary evidence is of record, [VA] shall
assist a claimant by requesting . . . existing evidence which is either in the custody of military
authorities or maintained by another Federal agency.").
Although Title 38 is generous to veterans in many ways, there is simply no apparent reason
why claimants who failed to provide sufficient information to even trigger the duty to assist should
receive uniquely favorable effective date treatment where the evidence that they could have
identified consists of service department records. Instead, VA's interpretation of its regulations—that
such favorable treatment is limited to those whose claims are frustrated through no fault of their
own—is logical and reasonable and deserves deference. Accordingly, I would affirm the Board's
decision on the issue of entitlement to an earlier effective date and must, therefore, respectfully
dissent from the majority opinion on that matter.
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