Case: 18-2376    Document: 41     Page: 1   Filed: 07/15/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                  FLORENCE JONES,
                   Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2018-2376
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-105, Senior Judge Mary J.
 Schoelen.
                ______________________

                  Decided: July 15, 2020
                  ______________________

    KENNETH M. CARPENTER, Law Offices of Carpenter
 Chartered, Topeka, KS, for claimant-appellant.

     BORISLAV KUSHNIR, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 ETHAN P. DAVIS, ROBERT EDWARD KIRSCHMAN, JR., LOREN
 MISHA PREHEIM; JONATHAN KRISCH, Y. KEN LEE, Office of
 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
                   ______________________
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 2                                            JONES   v. WILKIE




     Before O’MALLEY, BRYSON, and HUGHES, Circuit Judges.
 BRYSON, Circuit Judge.
     Appellant Florence Jones, the widow of deceased vet-
 eran Thomas Jones, seeks to overturn a decision of the
 United States Court of Appeals for Veterans Claims (“the
 Veterans Court”) regarding the effective date that the De-
 partment of Veterans Affairs (“DVA”) assigned to benefits
 awarded to Mr. Jones. We affirm.
                               I
      Mr. Jones served on active duty with the U.S. Army
 between August 1967 and October 1974, and he served in
 the Army National Guard from March 1987 to October
 1990. In 1994, he filed a claim for disability benefits for a
 nervous disorder and a right leg wound. A DVA regional
 office granted service connection for a right leg scar, but
 found that disability to be non-compensable. The regional
 office denied the claim for a nervous condition. The office
 found that there was no objective evidence in his service
 medical records of an in-service stressor, i.e., a traumatic
 event that caused his nervous disorder, although the ser-
 vice medical records were incomplete. Mr. Jones did not
 appeal that decision, which became final in 1995.
     Several years later, on October 7, 2002, Mr. Jones filed
 a request to reopen his claim, which he characterized as a
 claim for post-traumatic stress disorder (“PTSD”). In the
 request, he asserted that he was assaulted by muggers
 while he was stationed in Germany, which resulted in his
 developing PTSD. The regional office denied his request
 for reopening on the ground that the evidence did not es-
 tablish an in-service stressor and also that certain evidence
 that Mr. Jones presented was not new and material.
     In a 2006 deferred rating decision, a DVA rating officer
 noted that the DVA had requested Mr. Jones’s active duty
 service records in 1994, but that it was unclear whether all
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 JONES   v. WILKIE                                            3



 of those records had been obtained. The rating officer di-
 rected the regional office to attempt to obtain the records.
 The office received a copy of Mr. Jones’s active duty medical
 records on March 2, 2006, and a copy of Mr. Jones’s entire
 personnel file on June 22, 2006.
     Subsequently, in an August 2008 decision, the Board of
 Veterans’ Appeals granted Mr. Jones’s request to reopen
 and remand his claim for further development. The Board
 directed the regional office to obtain additional information
 from two individuals with knowledge of the assault in Ger-
 many, to obtain and associate with the claims folder all
 available records relating to the development of the claim,
 and to “readjudicate the claim for service connection for
 PTSD on appeal in light of all pertinent evidence and legal
 authority.”
      In 2010, the regional office granted Mr. Jones service
 connection for PTSD and a schizoaffective disorder, bipolar
 type. 1 The regional office based its new rating decision in
 part on Mr. Jones’s post-service DVA records, including a
 treatment record from October 2002. But it did not rely on
 Mr. Jones’s active duty records from 1967 to 1974. After
 initially assigning a lower disability rating, the regional of-
 fice later awarded Mr. Jones a 100% rating effective from
 October 7, 2002, the date that he sought to reopen his
 claim.
     Not fully satisfied with that disposition, Mr. Jones
 sought to have the effective date of his award made retro-
 active to June 7, 1994, the date he first filed his claim. The



     1    We note that the characterization of Mr. Jones’s af-
 fliction evolved over course of the proceedings from “nerv-
 ous disorder” to “PTSD” to “PTSD and a schizoaffective
 disorder, bipolar type.” The parties do not contend that the
 differences in those characterizations matter for purposes
 of this appeal.
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 4                                              JONES   v. WILKIE



 Board of Veterans’ Appeals denied that request in 2014.
 On review, however, the Veterans Court vacated the
 Board’s decision and remanded the case to the Board for
 further explanation regarding certain factual findings.
 The Veterans Court directed the Board to determine
 whether a February 1971 service treatment record and a
 March 1987 report from a Kansas Army National Guard
 physician were associated with Mr. Jones’s claims file at
 the time of the regional office’s decision on his claim in
 1994.
     Mr. Jones died in November 2014. His wife, appellant
 Florence Jones, was substituted as claimant.
     In a September 14, 2016, ruling, the Board determined
 that the March 1987 report was part of the record at the
 time of the regional office’s 1994 decision. The Board could
 not determine if the February 1971 service treatment rec-
 ords were associated with the claims file at that time. But
 the Board determined that regardless of when the Febru-
 ary 1971 records were associated with the file, neither the
 March 1987 report nor the February 1971 records “pro-
 vide[d] the basis, in all or in part, for the later reopening of
 the Veteran’s claim for service connection for PTSD.”
     The Board explained that the regional office already
 knew in 1994 that Mr. Jones had suffered a right leg lacer-
 ation as the result of an incident in 1968. But Mr. Jones,
 according to the Board, had not reported that his PTSD
 was related to that laceration until October 2002. 2 Previ-
 ously, according to the Board, Mr. Jones had stated only



     2   The Veterans Court said that the Board incorrectly
 stated that the claim was reopened because of assertions
 made by Mr. Jones in 2002 regarding the assault against
 him. According to the Veterans Court, the reopening was
 based on assertions made by Mr. Jones in 2003 and a 2008
 statement by a DVA physician.
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 JONES   v. WILKIE                                          5



 that he had been mugged, and he had not reported suffer-
 ing from associated wounds. It was the October 2002 re-
 port, corroborated by records showing a laceration, “that
 served as a basis of the grant for the claim for service con-
 nection,” the Board ruled. “Therefore, the additional ser-
 vice records documenting treatment for a laceration to his
 right leg did not serve as the basis for reopening and grant-
 ing the claim in any respect.” For that reason, the Board
 held that the effective date provision in the pertinent reg-
 ulation, 38 C.F.R. § 3.156(c)(3), 3 was inapplicable in this
 case; the Board therefore rejected Ms. Jones’s argument
 that the effective date for Mr. Jones’s PTSD claim should
 be 1994 rather than 2002.
     Ms. Jones appealed to the Veterans Court, which af-
 firmed the Board’s ruling. The court noted that, consistent
 with the requirements of 38 C.F.R. § 3.156(c)(3), the DVA
 had reconsidered Mr. Jones’s claim when the Board re-
 manded the claim in 2008 and the regional office granted
 him disability benefits in 2010. As to the role of the Feb-
 ruary 1971 and March 1987 service records, the court up-
 held the Board’s determination that those records were not
 part of the basis for the award of benefits, and that the
 Board therefore properly found that the effective date for
 the award was October 7, 2002, the date on which the ap-
 pellant sought to reopen his previously denied claim. The
 decision in Mr. Jones’s favor, the court noted, was based on
 evidence created in 2003 and 2008, which did not exist in
 1994 when Mr. Jones’s claim was denied. Because section
 3.156(c)(3) provides that newly associated records must



     3   The regulatory framework applicable to this case
 predates the Veterans Appeals Improvement Moderniza-
 tion Act, Pub. L. No. 115-55 (2017). The regulations imple-
 menting that Act became effective in February 2019, and
 do not apply to this case.
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 6                                            JONES   v. WILKIE



 have existed at the time of the initial decision in order to
 warrant an effective date relating back to the date on which
 the DVA received the previously decided claim, the court
 held that the Board properly rejected Ms. Jones’s request
 to revise the effective date for the PTSD claim from 2002 to
 1994. 4 Ms. Jones took this appeal challenging the effective
 date assigned to the award of benefits.
                              II
     This court has appellate jurisdiction to review a deci-
 sion of the Veterans Court with respect to any interpreta-
 tion of a statute or regulation relied on by that court in
 making its decision. 38 U.S.C. § 7292(a). We may not, how-
 ever, review a challenge to a factual determination or a
 challenge “to a law or regulation as applied to the facts of
 a particular case.” Id. § 7292(d)(2).
     Ms. Jones argues that the Veterans Court misinter-
 preted 38 C.F.R. § 3.156(c) and relied on an incorrect legal
 standard in applying that regulation. She characterizes
 the court as holding that section 3.156(c)(1) did not require
 reconsideration of Mr. Jones’s original claim even though
 it was unclear whether an official service department file



     4   The court said that the Board misstated the law
 when it stated that the subsequently associated records did
 not serve as the basis for reopening the previously denied
 claim for PTSD. As the government acknowledges, the rel-
 evant inquiry under 38 C.F.R. § 3.156(c)(3) is whether the
 newly received or associated records were a basis for the
 award, not for the reopening of the claim. The court ruled,
 however, that the error was harmless because the Board in
 its analysis fully considered the applicable provisions of
 section 3.156(c) and properly applied the law when it ruled
 that “the award of service connection was not based in all
 or in part on the association of [the] February 1971 service
 records with the file.”
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 JONES   v. WILKIE                                            7



 was in the DVA’s possession at the time of the DVA’s orig-
 inal decision. In addition, she argues that the court im-
 properly held that section 3.156(c)(3) requires that the
 newly discovered service department records be the basis
 for both reopening the claim under section 3.156(a) and
 granting the reopened claim, when in fact section
 3.156(c)(3) requires only that the award be based in part on
 the records identified by section 3.156(c)(1).
     The regulation at issue in this case, 38 C.F.R.
 § 3.156(c), provides as follows, in pertinent part:
    (c) Service department records.
          (1) Notwithstanding any other section in
          this part, at any time after VA issues a de-
          cision on a claim, if VA receives or associ-
          ates 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, notwith-
          standing paragraph (a) of this section
          [which provides for reopening claims upon
          the receipt of new and material evidence].
          ...
          (3) An award made based all or in part on
          the records identified by paragraph (c)(1) of
          this section is effective on the date entitle-
          ment arose or the date VA received the pre-
          viously decided claim, whichever is later, or
          such other date as may be authorized by
          the provisions of this part applicable to the
          previously decided claim.
                                A
     The DVA is required to “reopen” a finally adjudicated
 claim under 38 C.F.R. § 3.156(a) if the claimant submits
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 8                                            JONES   v. WILKIE



 new and material evidence in support of the claim. “Recon-
 sideration” of a claim is required by 38 C.F.R. § 3.156(c)(1)
 if the DVA receives official service department records that
 existed but had not been associated with the claims file
 when the DVA first decided the claim.
      In the case of an award that results from reopening un-
 der section 3.156(a), the effective date of the award is the
 date the request for reopening was made or the date of en-
 titlement, whichever is later. 38 U.S.C. § 5110(a); 38
 C.F.R. § 3.400(q)(2); Blubaugh v. McDonald, 773 F.3d
 1310, 1313 (Fed. Cir. 2014). If an award that results from
 reconsideration under section 3.156(c) was based in whole
 or in part on the newly obtained records, the award will be
 made effective on the date the original claim was received
 (or the date of entitlement if that is later than the date of
 receipt of the claim). 38 C.F.R. § 3.156(c)(3).
     In this case, the DVA reopened Mr. Jones’s claim in
 2008 based on new and material evidence. The February
 1971 service records, which were not part of the claims file
 when the DVA first denied Mr. Jones’s claim, were associ-
 ated with the claims file prior to the 2008 reopening deci-
 sion. Thus, as found by the Veterans Court, the DVA
 considered the February 1971 service records, together
 with all the other evidence of record, during the remand
 proceedings before the regional office.
     Although it is undisputed that the DVA reopened Mr.
 Jones’s 1994 claim, Ms. Jones contends that DVA failed to
 “reconsider” that claim. But she does not point to any evi-
 dence that the DVA failed to reconsider. Nor does she sug-
 gest what the DVA should have done differently in order to
 comply with the obligation to “reconsider” the claim.
     As this court explained in Blubaugh v. McDonald, re-
 consideration under section 3.156(c) is meant to ensure
 “that a veteran is not denied benefits due to an administra-
 tive error.” 773 F.3d at 1313. The regulation “serves to
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 JONES   v. WILKIE                                           9



 place a veteran in the position he would have been had the
 VA considered the relevant service department record be-
 fore the disposition of his earlier claim.” Id. The Veterans
 Court has similarly described reconsideration under sec-
 tion 3.156(c) as requiring the agency to reassess its original
 decision in light of the new service records, which may in-
 clude the development of additional evidence. George v.
 Shulkin, 29 Vet. App. 199, 205 (2018), vacated on other
 grounds sub nom. George v. Wilkie, 782 F. App’x 997 (Fed.
 Cir. 2019); see also Poole v. Wilkie, No. 19-0041, 2020 WL
 2108261, at *4 (Vet. App. May 4, 2020). Because the DVA
 considered Mr. Jones’s claim in view of the records that Ms.
 Jones alleges should have been a part of the claimant’s file
 from the outset, the DVA “reconsidered” the claim per 38
 C.F.R. § 3.156(c)(1), as held by the Veterans Court. 5
     The regional office subsequently awarded benefits.
 That award was exactly what Mr. Jones sought when he
 requested reopening of his initial claim. The only remain-
 ing question was what the effective date of that award
 should be.
     As to that question, the Board properly applied the
 standard set forth in 38 C.F.R. § 3.156(c), as held by the
 Veterans Court. The Board examined whether the award
 was based in whole or in part on any of the service records
 that existed but were not available to the regional office at
 the time of the initial decision on Mr. Jones’s claims. The
 Veterans Court found that the Board had correctly applied
 the law regarding the effective date for the award. We see



     5   Ms. Jones also contends the Veterans Court erred
 because the Board failed to determine whether the alleg-
 edly missing records were relevant as required by 38 C.F.R.
 § 3.156(c)(1). But the government has not disputed that
 the newly associated records were relevant and that recon-
 sideration was required.
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 10                                            JONES   v. WILKIE



 no legal error in the Veterans Court’s conclusion in that
 regard.
      The outcome of that issue was not dictated by any dis-
 tinction between reopening and reconsideration, both of
 which occurred here. Instead, the key issue was whether
 the award was attributable in whole or in part to the newly
 obtained service records, as directed by 38 C.F.R.
 § 3.156(c). To the extent Ms. Jones is suggesting that “re-
 consideration” mandates that the effective date of any
 award must necessarily be retroactive to the date of the in-
 itial claim, that argument is squarely contrary to section
 3.156(c), which defines the particular circumstances in
 which such a retroactive effective date is required.
      The regulations make clear that reconsideration of the
 initial claim is required if any relevant official service per-
 sonnel records or service medical records were not associ-
 ated with the claims file at the time of the DVA’s initial
 decision on the claim. The DVA assumed that was true
 here and conducted reconsideration after the claim was or-
 dered reopened. The DVA then granted an award of bene-
 fits. But that award was not predicated in any way on
 records that were not before the DVA at the time of the
 initial decision on the claim. Thus, as the Board held, the
 proper effective date was the date of the request for reopen-
 ing, not the date of the initial claim. That is consistent with
 the procedure dictated by section 3.156 and does not reflect
 a misinterpretation of the regulations by the Veterans
 Court. See Blubaugh, 773 F.3d at 1314; New and Material
 Evidence, 70 Fed. Reg. 35388, 35389 (June 20, 2005).
                               B
     Ms. Jones also contends that the Veterans Court relied
 on an incorrect legal standard because it erroneously re-
 quired that newly discovered service department records
 be the basis both for reopening the claim and for awarding
 benefits on the reopened claim. That is not what either the
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 JONES   v. WILKIE                                         11



 Board or the Veterans Court did. Although the Board
 noted that Mr. Jones’s claim was reopened based on evi-
 dence obtained after the 1994 decision denying his claim,
 that fact was cited simply as contextual support for the
 Board’s determination that the award of benefits was not
 attributable to the pre-1994 service records that were ob-
 tained after the denial of the claim. On the critical issue
 as to the evidence on which the Board based its award, the
 Veterans Court wrote: “The Board explained that the Feb-
 ruary 1971 service medical record and the March 1987 ser-
 vice record were not the basis for reopening, and more
 significantly, the eventual grant of the appellant’s claim.”
     Thus, contrary to Ms. Jones’s contention, the Veterans
 Court did not require that in order to trigger the effective
 date provision of 38 C.F.R. § 3.156(c)(3), the claimant had
 to show that both the reopening of the claim and the award
 were based in part or in whole on the records identified in
 section 3.156(c)(1). As the Veterans Court ruled, the Board
 focused its analysis on whether the award was based on
 those records, and not on whether the decision to reopen
 the claim was based on those records. There was therefore
 no legal error in the interpretation of section 3.156(c)(3).
     Ms. Jones points to the purported error made by the
 Board in referring to the service records as not serving “as
 a basis for reopening the previously denied claim,” rather
 than stating that those records did not serve as a basis for
 reconsidering the previous denial of Mr. Jones’s claim and
 awarding benefits. Ms. Jones challenges the Veterans
 Court’s conclusion that the Board’s error was harmless.
 Although the Board in its findings of fact stated that the
 subsequently associated records did not serve as the basis
 for reopening the previously denied claim, the Board ap-
 plied the proper standard when it analyzed whether the
 subsequently associated records served, in whole or in part,
 as the basis for the award. The Veterans Court acknowl-
 edged the Board’s purported error in referring to the basis
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 12                                            JONES   v. WILKIE



 for reopening rather than the basis for the award, but in
 light of the Board’s application of the proper legal standard
 in the course of its analysis, the court held that error to be
 harmless.
      Citing Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir.
 2007), and Pitts v. Shinseki, 700 F.3d 1279 (Fed. Cir. 2012),
 the government argues that this court lacks jurisdiction to
 decide whether the Veterans Court was correct in finding
 that the Board’s remark about reopening was harmless er-
 ror. To review that ruling by the Veterans Court, the gov-
 ernment argues, would be to review an application of law
 to fact, contrary to the statutory limit on this court’s juris-
 diction in appeals from the Veterans Court under 38 U.S.C.
 § 7292(d)(2).
     Ms. Jones responds that the Board’s misstatement con-
 stituted an error of law. She contends that the Board and
 the Veterans Court relied on the misstatement and applied
 the wrong legal standard in making the effective date de-
 termination.
     As explained above, we uphold the Veterans Court’s de-
 termination that the Board applied the correct legal stand-
 ard under 38 C.F.R. § 3.156(c) when it analyzed the
 effective date issue. What remains is the Veterans Court’s
 conclusion that, given that the Board applied the proper
 legal standard, the Board’s purported mischaracterization
 of the test early in its opinion was harmless. On that nar-
 row issue, the government is correct that we lack jurisdic-
 tion to review the Veterans Court’s ruling in light of
 Newhouse and Pitts.
     Because we find no error by the Veterans Court falling
 within our appellate jurisdiction, we affirm the Veterans
 Court’s judgment.
      No costs.
                         AFFIRMED
