Client Win: CAVC No. 20-2665, Johns v. McDonough (BVA wrong to deny earlier PTSD effective date)
This case involves a Marine Corps veteran (1966 to 1969) who was seeking an earlier effective date for his service connected PTSD claim. The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA wrong to deny earlier PTSD effective date).
The general PTSD effective date rule is that your award is effective the later of the date of the claim and the date the entitlement arose. 38 C.F.R. §3.400. However, there are a lot of exceptions that allow for an earlier PTSD effective date.
One of those exceptions is based on the discover of new and relevant service records. If at any time after the VA issues a decision on a claim, the VA receives or associates with the claims file new and relevant service records that were not in the file when the VA first decided the claim, the VA must reconsider that claim. 38 C.F.R. §3.156(c).
RESOLUTION AT THE CAVC.
The veteran appealed the BVA's denial of a PTSD effective date earlier than December 2012. The BVA found that a 1971 rating decision denying entitlement to service connection for PTSD was final, and that the 1971 claim date could not serve as the PTSD effective date.
However, it was only after additional service records were added to the record that the veteran was granted service connection for PTSD. The BVA did not consider whether 38 C.F.R. §3.156(c) applied; it failed to consider whether the PTSD effective date could be the date underlying the 1971 rating decision based on the addition of new and relevant service records to the file.
The parties agreed that the BVA erred, and that remand to the BVA was proper, because the BVA incorrectly applied the law. Tucker v. West, 11 Vet.App. 369, 374 (1998).
If you believe you are entitled to a PTSD effective date earlier than the one the BVA or VA assigned, and would like legal representation by an accredited VA attorney to appeal the decision to the BVA or the CAVC, click here to have Attig | Curran | Steel take a look at your case.
OGC Attorney: Jacqueline Kerin (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: J. Parker (link to bio on Campbell University website)
Attorney for the BVA: D. Constantino
Vets’ Rep at BVA: Carol Ponton (link to attorney's cases with our firm)
Date of BVA Decision: December 19, 2019
Date of CAVC Joint Motion to Remand: December 16, 2020