What is the Deep Issue in the Case?

The veteran initially claimed PTSD in 2005. While his claim and appeal was pending, in July 2010, VA PTSD regulation 38 CFR 3.304(f)(3) was updated by the Secretary. The new regulation made it easier for veterans to prove VA PTSD claims: specifically, when a veteran claimed his VA PTSD stressor was due to fear of hostile military activity, the need for the veteran to independently corroborate the VA PTSD stressor was eliminated. As a result, the VA granted service connection for this veteran's PTSD in 2011. They assigned an effective dat of July 2010, the date of the changes to the VA PTSD regulation that led to the grant of service connection. The BVA found that 38 CFR 3.304(f)(3) was a liberalizing change to a VA PTSD rule, and therefore the effective date could be no earlier than the date of the VA PTSD liberalizing rule under 38 C.F.R. §3.114.

Did the BVA err when it applied the "liberalizing rule effective date rule" to the change to the VA PTSD regulation at 38 CFR 3.304(f)(3)?

What did the CAVC Decide?

The CAVC held that because the new VA PTSD regulation at 38 C.F.R. §3.304(f)(3) was not a substantive change in the law, and merely relaxed the procedural mechanisms by which a Veteran might prove service connection of PTSD, it was not a liberalizing rule.

Because it was a liberalizing rule, the general effective date rule applied.

A majority of the panel of the Court of Appeals for Veterans Claims agreed to remand the appeal to the BVA to adjudicate the proper effective date under the general effective date rule.

Chief Judge Davis dissented, but only in that he would have reversed and granted a specific effective date, on the grounds that the only permissible view of the evidence of record supported a September 23, 2008, effective date for the Veteran's PTSD claim.

** This is not an effective binding precedent until the CAVC issues its mandate. If the Secretary does not appeal the decision, the mandate will likely issue in late April 2018. ***

Takeaway Points for VSOs and Veterans Disability Lawyers:

1. The power of an amicus brief.

My initial thought on this case is that Amicus briefs have power to change the outcome of a case.

An amicus brief - full title is Amicus Curiae, or "Friend of the Court" - is a brief that is submitted by a non-party to a case to assist the court in adjudicating an issue in the case.

Typically, the amicus is a non-profit with a particularized interest in the issue in a case.

Frequently, the amici in CAVC are veterans organizations and veterans advocacy organizations - like the NVLSP, NOVA, the Veterans Justice Group, or the Pro Bono Consortium - with a particular area of expertise in the VA benefits process.

But they need not be "veteran" organizations - many issues before this Court could benefit from the societal, scientific and medical context that an amicus from the AARP or a medical professional association such as the American Medical Association might provide.

The amicus usually does not argue for a particular outcome, but instead give the court background information, context, or other information that helps the court see the broader picture.

Although rare, when an amicus brief argues for a particular result - or simply tries to bolster a parties contention - the amicus can become a burden on the court and can hurt a case. Judges are already reading thousands of pages of material in any given case, and we as advocates need to exercise discretion in what we ask them to read.

Here, the amicus brief (click here to read it) received a special expression of gratitude from the Court:

"The Court expresses its appreciation to the Veterans Consortium Pro Bono Program and extends its gratitude to attorney Paul M. Schoenhard for filing a brief with the Court on behalf of the amicus."

It had the power to force Secretary to withdraw the original brief and submit the rare "substitute" brief, completely changing its position.

2. The Secretary's most consistent position is against the Veteran.

I'm working on a post on this for the future, but the Secretary's core legal philosophy at the CAVC is often "the opposite of the Veteran's argument".

In this case, the Secretary originally took the position that 38 C.F.R. 3.304(f)(3) was a liberalizing rule, and that therefore the earliest effective date was the effective date of the liberalizing rule.

In at least one other appeal with the same issue (I won't link to it because it is still being briefed) the Secretary has taken the position that 3.304(f)(3) is NOT a liberalizing rule.

In an unrelated matter, one of our firm's cases has been submitted to a panel in part because of this very tactic: in addressing a legal issue related to effective dates for certain claims by Nehmer class-members, the Secretary has historically taken contradicting positions, leading to inconsistent single judge decisions from the CAVC on what appears to be the same issue.

In 2017, the CAVC issued a memorandum decision regarding a specific type of Nehmer effective date issue - click here to read about it

This is a critical point for attorneys representing veterans in a VA disability claim: if you used a single judge decisions of the CAVC as a compass to guide your presentation of the case at the VARO and BVA - and lost, mention this to your appellate counsel.

Your legal issue could present a good opportunity for a precedential decision.

Case Details

Link to the CAVC Panel Decision on the CAVC Website

Link to the BVA Decision on CAVC Website

CAVC Judge: Panel Decision (Precedential)

Judge Margaret Bartley - Opinion Author - (link to bio on CAVC website)

Judge Coral W. Pietsch (link to bio on CAVC Website)

Chief Judge Robert N. Davis (link to bio on CAVC website)

OGC Attorney: Nathan P. Kirschner

Veteran Representation at CAVC: pro-se

Board of Veterans Appeals Veterans Law Judge: Michael E. Kilcoyne

VA Regional Office: Waco, Texas VARO

Vets’ Rep at BVA: pro-se

Date of Decision: January 22, 2018