UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 14-2968

EVERETT EMERSON, APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued March 8, 2016 Decided August 10, 2016)

Sandra E. Booth, of Columbus, Ohio, for the appellant. 

Ronen Z. Morris, with whom Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant

General Counsel; Thomas E. Sullivan, Deputy Assistant General Counsel; and Michael J. A. Klein, 

were on the brief, all of Washington, D.C., for the appellee.

Before HAGEL, Chief Judge, and PIETSCH and BARTLEY, Judges.

BARTLEY, Judge: Veteran Everett Emerson appeals through counsel aMay12, 2014,Board

of Veterans' Appeals (Board) decision that denied (1) an effective date earlier than August 23, 2010,

for the award of service connection for post-traumatic stress disorder (PTSD) and (2) an initial PTSD

disability evaluation in excess of 50%. Record (R.) at 3-22. The veteran's PTSD service-connection 1

claim was initially denied in February 2003 but thereafter granted in June 2011 based upon an

amendment to 38 C.F.R. § 3.304(f), which altered the requirements regarding verification of inservice stressors. Mr. Emerson then submitted to VA service department records not previously

associated with his claims file. This case was referred to a panel to determine whether VA is

 The Board remanded the issue of whether there was clear and unmistakable error in a February 2003 rating

1

decision that denied service connection for PTSD. R. at 20-22. Because a remand is not a final decision of the Board

subject to judicial review, the Court does not have jurisdiction to consider that issue at thistime. See Howard v. Gober,

220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R.

§ 20.1100(b) (2016). 
required, pursuant to 38 C.F.R. § 3.156(c)(1), to "reconsider the claim" in such circumstances. In

2

other words, in light of the fact that Mr. Emerson was granted service connection on the basis of a

liberalizing regulation prior to VA's receipt of newly associated service department records, does the

language of § 3.156(c)(1) require reconsideration of his initial 2003 claim on the basis of those newly

associated service department records? We conclude that such reconsideration is mandated by the

plain language of the regulation and, accordingly, we will set aside the portion of the May 2014

Board decision denying an earlier effective date for the award of service connection for PTSD and

remand that matter for additional development, if necessary, and readjudication consistent with this

decision. We will also set aside and remand the portion of the Board decision denying an initial

PTSD disability evaluation in excess of 50%.

I. FACTS & PROCEDURAL HISTORY

Mr. Emerson served on active duty in the U.S. Army from September 1967 to September

1969, including service in Vietnam for which he received, inter alia, the Vietnam Service Medal, the

Aircraft Crewman Badge, and the Air Medal. R. at 377.

In September 2000, the veteran sought service connection for PTSD. R. at 395-98, 402. In

November 2000, he submitted a written statement describing in general terms his service in Vietnam,

mentioning that he served as a helicopter door gunner and participated in missions transporting

wounded servicemembers to the hospital. R. at 383-90; see R. at 338 (May 1968 medical

qualification for aerial gunner duty). He also submitted a June 2002 private medical opinion, which

diagnosed severe chronic PTSD based on the veteran's reports of seeing wounded and dead

ThisCourt has not yet had occasion to address this question. In one previous case, we remanded for the Board 2

to address in the first instance whether § 3.156(c) was applicable where official service department records were

associated with the claims file before and after a grant of service connection. See Pacheco v. Gibson, 27 Vet. App. 21,

23-24, 30-31 (2014) (en banc) (per curiam). In another, we remanded for the Board to consider the applicability of

§ 3.156(c) where VA did not obtain previously unassociated official service department records but appeared to have

granted service connection based on lay statements and a VA medical opinion that relied on those records. See generally

Stowers v. Shinseki, 26 Vet.App. 550 (2014). In all other cases where this Court or the U.S. Court of Appeals for the

Federal Circuit has addressed aspects of § 3.156(c), the respective service-connection claims were in a state of denial

at the time the relevant official service department records were associated with the claims file. See Blubaugh v.

McDonald, 773 F.3d 1310, 1311 (Fed. Cir. 2014); Young v. McDonald, 766 F.3d 1348, 1350 (Fed. Cir. 2014); Cline

v. Shinseki, 26 Vet.App. 18, 19-21 (2012); Shipley v. Shinseki, 24 Vet.App. 458, 460 (2011); Mayhue v. Shinseki,

24 Vet.App. 273, 275-76 (2011); Vigil v. Peake, 22 Vet.App. 63, 64-65 (2008).

2
servicemembers and "seeing tracers coming at him" while on missions as a helicopter crewman. R.

at 360-71. The physician noted that the veteran experienced difficultysleeping; intrusive nightmares

and recollections that induced rapid pulse, cold sweats, and hot flashes; depression; difficulty

concentrating; and hypervigilance that caused him to compulsively lock and recheck doors at night

and sit with his back to the wall when dining out. R. at 360. The physician further noted that Mr.

Emerson avoided crowds and often felt irritable, angry, and suspicious toward people. R. at 362

(noting the veteran's statement: "I can't work for anybody."). According to the physician, the veteran

had significant impairment in social, occupational, and family relationships, as well as in judgment

and mood, and his speech became increasingly incoherent as the interview progressed. R. at 366.

In July 2002, VA requested service medical records and verification of "only the unverified

periods of service shown." R. at 320. In August 2002, the RO issued a deferred rating decision so

that (1) the veteran could be sent and complete a stressor statement form (since the previously

submitted statement was "almost two years old and quite vague"), (2) VA could obtain the veteran's

personnel file, and (3) VA could determine whether the veteran's Air Medal bore a "V" device,

which would definitively verify a combat stressor. R. at 319. VA sent the stressor statement form

to the veteran, R. at 314-18, but there is no indication whether it undertook the other development

mentioned.

In February 2003, the RO denied service connection for PTSD based on the lack of a verified

stressor, noting that Mr. Emerson failed to return the stressor form. R. at 299-307. Mr. Emerson did

not appeal this decision and it became final. See R. at 21.

Effective July 12, 2010, VA amended § 3.304(f) to eliminate the requirement for

corroborative evidence of a stressor where a VA mental health expert has diagnosed PTSD and the

stressor is related to the veteran's fear of hostile militaryor terrorist activity. Stressor Determinations

for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010) (final rule) (codified at

38 C.F.R. § 3.304(f)(3)); see also Stressor Determinations for Posttramuatic Stress Disorder, 74 Fed.

Reg. 42,617 (Aug. 24, 2009) (proposed rule).

In August 2010, Mr. Emerson stated his belief that he should be receiving more from VA for

his PTSD, R. at 279, which VA interpreted as a request to reopen his claim for service connection

3
for PTSD, R. at 268. Four months later, he retained an attorney to represent him. R. at 258-59. He 3

underwent a VA contract examination in January 2011. The examiner noted the veteran's reports

of having participated in combat as a helicopter door gunner. R. at 244-45. The examiner noted

reports of sleep disturbance with nightmares, intrusive recollections, anxiety, avoidance behaviors,

exaggerated startle response, and "pervasive depressed mood impacting all facets of work and home

life." R. at 246-49.

In June 2011, the RO granted service connection for PTSD. R. at 186-99. The RO noted that

"VA recently changed the requirements regarding verification of in-service stressors" in PTSD

claims and, as codified at 38 C.F.R. 3.304(f)(3), was "now able to take into consideration a veteran's

fear of hostile military or terrorist activity as a verified stressor provided the conditions and

circumstances of his [or her] service are consistent with his [or her] statements and the VA examiner

associates a clinical diagnosis of PTSD with these factors." R. at 194. In light of the notation of the

Vietnam Service Medal on the veteran's DD 214, which showed service "in a location involving

hostile military or terrorist activity"; the veteran's statements, which were "consistent with the place,

type, and circumstance" of service; and the January 2011 examiner's opinion linking PTSD to the

veteran's fear of hostile military or terrorist activity in Vietnam, the RO awarded service connection. 

Id. The RO assigned a 30% disability evaluation and an effective date of August 23, 2010, the date

VA received the request to reopen the claim. R. at 194-95.

Mr. Emerson filed a timely Notice of Disagreement (NOD) as to the effective date and

evaluation assigned. R. at 172-78. He underwent another VA examination in January 2012. The

examiner confirmed the diagnosis of PTSD with depression and opined that the veteran suffered

from occupational and social impairment with occasional decrease in work efficiency and

intermittent periods of inability to perform occupational tasks, although generally functioning

satisfactorily, with normal routine behavior, self-care, and conversation. R. at 154. Upon

evaluation, the examiner indicated that the veteran suffered from depressed mood, chronic sleep

impairment, mild memory loss, flattened affect, difficulty establishing and maintaining effective

work and social relationships, and difficulty adapting to stressful circumstances. R. at 157-58. Last,

Polly Murphy has since withdrawn from representing Mr. Emerson; he is currently represented by Sandra E. 3

Booth.

4
the examiner remarked that the veteran's "PTSD and associated depression continue to produce

moderate work and social dysfunction." R. at 159. The RO continued to deny a higher initial

evaluation in excess of 30% and an earlier effective date, R. at 131-49, and the veteran appealed to

the Board, R. at 130.

In July 2012, Mr. Emerson and his wife testified at a Board hearing as to his psychiatric

symptoms and emotional problems, trouble working, and social impairment. R. at 62-77, 84-118.

Mr. Emerson's then-counsel also explicitly raised the applicability of § 3.156(c). R. at 116 ("It's not

discretionary [is what] the reg[ulation] says. The VA shall go back and readjudicate the final

decision. I think that's going to be the relevant regulation there.").

Later in July 2012, Mr. Emerson submitted through then-counsel argument to the Board,

wherein he raised the issue of the applicability of § 3.156(c) to the issue of an earlier effective date

for the grant of service connection for PTSD. R. at 25-30. He also submitted service department

records, one of which was an Air Medal Worksheet that listed the date and duration of completed

helicopter missions, with the letter "C" written next to each under "Mission Type." R. at 31. He also

submitted a Department of the Army Form 20 that documented personnel information, such as

assignments, duties, awards, and campaigns; that form listed the Tet Counter Offensive. R. at 32,

34-36.

In the May 2014 decision on appeal, the Board granted an initial evaluation for PTSD of

50%, but no higher, and denied an effective date earlier than August 23, 2010, the date of Mr.

Emerson's construed request to reopen, for the grant of service connection for PTSD. In adjudicating

the earlier effective date claim, the Board did not address the applicability of § 3.156(c), instead

focusing solely on the general effective date rules set forth in 38 U.S.C. § 5110 and 38 C.F.R.

§ 3.400. R. at 18-20. Regarding a higher initial evaluation for PTSD, the Board determined that a

70% evaluation was not warranted. R. at 9-18. This appeal followed.

II. PARTIES' ARGUMENTS

Mr. Emerson first argues that the Board erred by failing to ensure that VA complied with

§ 3.156(c). Appellant's Brief (Br.) at 12-13. The veteran contends that the plain language of

§ 3.156(c)(1) mandates that VA "reconsider" his claim upon the receipt of official service department

5
records that were not previously associated with the claims file. Id. at 14-16. The regulatory phrase

"at any time," he argues, "is clear on its face" and "contains no limiting language or ambiguities

pertaining to timing [that] would permit the agency to evade its mandate to reconsider by granting

service connection on a different, less favorable legal theory." Reply Br. at 8-9. Mr. Emerson

further contends that he was prejudiced by the Board's error because § 3.156(c), "if applied, facially

supports an effective date ten years earlier than the currently assigned effective date." Appellant's

Br. at 16. Second, the veteran contends that the Board provided inadequate reasons or bases because

it did not adequately discuss the full range and severity of psychiatric symptoms of record when

denying a PTSD evaluation in excess of 50%. Id. at 13-14, 18-30.

The Secretary responds that there was no error in the Board's failure to discuss § 3.156(c)

because the argument the veteran is now raising on appeal was not articulated before VA. 

Secretary's Br. at 12-14. Even if the issue was raised, such that the Board should have considered

it, the Secretary contends that § 3.156(c) is not for application on the facts of this case. 

Characterizing § 3.156(c)(1), the Secretary says that VA will reconsider "when VA has denied a

claim but later receives 'relevant official service department records' that existed but had not been

associated with the file at the time the claim was decided." Id. at 14 (emphasis added). The

Secretary notes that the award of service connection in this case was not based all or in part on newly

associated service department records but on a 2010 revision of § 3.304(f), which governs service

connection for PTSD ; service department records were not associated with the claims file until 4

2012. Id. at 15-16. With respect to evaluation, the Secretary contends that the Board adequately

explained its decision to deny an initial PTSD evaluation in excess of 50% and contends that Mr.

Emerson is merely disagreeing with the Board's weighing of the evidence. Id. at 17-25.

Section 3.304(f)(3) allows the third element of a claim for service connection for PTSD to be based on a

4

veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3) (2016).

6
II. ANALYSIS

A. 38 C.F.R. § 3.156(c)

1. Mr. Emerson Raised the Applicability of 38 C.F.R. § 3.156(c) Below

The Secretary argues that the issue of the applicability of § 3.156(c) is not properly before

this Court because Mr. Emerson, despite being represented by counsel at the time, failed to raise the

issue below. Secretary's Br. at 12-14. The Court disagrees.

When a claimant raises an argument for the first time on appeal to this Court, and VA's

institutional interests outweigh the interests of the claimant, this Court may invoke the claimant's

failure to exhaust administrative remedies and decline to consider the argument. See Scott v.

McDonald, 789 F.3d 1375, 1378-81 (Fed. Cir. 2015). However, the record shows that Mr. Emerson

explicitly raised the applicability of § 3.156(c) before the Board. At the July 2012 Board hearing,

when the Board member inquired as to the argument for an earlier effective date, then-counsel cited

§ 3.156(c) and asserted that the regulation is "not discretionary" but states that, after VA receives

newly associated service department records, it "shall go back and readjudicate the final decision."

R. at 116. Likewise, in a July 2012 written submission to the Board, then-counsel argued that

service records were associated with the claims file after the February 2003 RO decision and that 5

this required the RO "to go back and readjudicate the original claim. 38 C.F.R. § 3.156(c)(1)." R.

at 27. 

Thus, the argument for § 3.156(c)'s applicability was explicitly raised below by the veteran,

and the Board was obliged to consider and discuss the issue. See Robinson v. Peake (Robinson I),

21 Vet.App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki (Robinson II), 557 F.3d 1355,

1361 (Fed. Cir. 2009); see also Brannon v. West, 12 Vet.App. 32, 35 (1998) (concluding that the

Board must "adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive

appeal including all documents and oral testimony in the record prior to the Board's decision"). To

the extent that the Secretary contends that, to preserve the § 3.156(c) issue for judicial review, Mr.

Although then-counsel referred to service medical records, it is clear that she was referring to the recently

5

submitted service personnelrecords. Cf. Nohr v. McDonald, 27 Vet.App. 124, 131 (2014)(noting that "the Board should

not fixate on the terminology used by veterans' counsel and lose sight of its duty to address all issues reasonably raised

by the appellant or by the evidence of record").

7
Emerson was required to articulate as fully developed an argument before the Board as he now

presents, such contention is not consistent with case law. See Robinson I, 21 Vet.App. at 553 ("As

a nonadversarial adjudicator, the Board's obligation to analyze claims goes beyond the arguments

explicitly made."); see also Robinson II, 557 F.3d at 1361 (holding that "[i]n direct appeals, all

filings must be read 'in a liberal manner' whether or not the veteran is represented").

2. Text, Structure, and Applicability of 38 C.F.R. § 3.156(c)

Although the Board did not address the applicability of § 3.156(c) to the circumstances of

this case, because that question was raised below and presents a legal issue and the relevant facts

regarding applicability are not in dispute, the Court will consider this matter in the first instance. See

Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc)(noting that legal determinations generally are

reviewed de novo); see also Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed. Cir. 2014) (deciding

as a question of law whether § 3.156(c) was applicable in a case where the facts were undisputed).

Generally, a claimant may reopen a finally adjudicated claim by submitting new and material

evidence. 38 C.F.R. § 3.156(a) (2016). The effective date for an award on a claim reopened on this

basis is usually the date of receipt of the claim or request to reopen or the date entitlement arose,

whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i), (r)(2016). However, subsection

(c) establishes an exception to these rules, the purpose of which is "to place a veteran in the position

he [or she] would have been had . . . VA considered the relevant service department record before

the disposition of [the] earlier claim." Blubaugh, 773 F.3d at 1313; New and Material Evidence,

70 Fed. Reg. 35,388, 35,389 (June 20, 2005) (proposed rule) (stating that revised § 3.156(c) will

"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"); see also

Pacheco v. Gibson, 27 Vet.App. 21, 32-33 (2014) (en banc) (Pietsch, J., concurring) (noting that

subsection (c) "is an exception to finality") . Subsection (c) begins:

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. 

8
38 C.F.R. § 3.156(c)(1). As relevant here, official service department records include "service

records that are related to a claimed in-service event, injury, or disease, regardless of whether such

records mention the veteran byname." § 3.156(c)(1)(i). Subsection (c)(3) specifies that the effective

date for "[a]n award made based all or in part on the records identified by paragraph (c)(1) of this

section" may be as early as "the date VA received the previously decided claim." § 3.156(c)(3).

The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has explained the steps

VA must take under § 3.156(c). Paragraph (c)(1) "requires the VA to reconsider only the merits of

a veteran's claim whenever it associates a relevant service department record with his [or her] claims

file." Blubaugh, 773 F.3d at 1314. "Only if the VA grants benefits resulting from reconsideration

of the merits under § 3.156(c)(1) must it consider an earlier effective date under [paragraphs] (c)(3)

and (c)(4)." Id. In other words, (c)(3)'s discussion of the proper effective date for "[a]n award"

refers to an award resulting from (c)(1)'s reconsideration of the claim's merits.

Although Mr. Emerson's ultimate goal may be to obtain an earlier effective date pursuant to

(c)(3), we address in the present appeal mainly whether, in the circumstances of this case, he was

entitled to reconsideration pursuant to (c)(1). Regulatory interpretation starts with the language of

the regulation, the plain meaning of which is derived from its text and its structure. Petitti v.

McDonald, 27 Vet.App. 415, 422 (2015). "The canons of construction of course apply equally to

any legal text and not merely to statutes." Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994). 

Neither party contends that the text of (c)(1) is ambiguous; both assert that the plain language

supports their positions. Oral Argument Recording at 03:00-05; 55:00-05. The Court agrees that

the relevant text is not ambiguous.

Paragraph (c)(1) begins with broad language: "Notwithstanding any other section in this

part." The introduction of a provision by the word "notwithstanding" means that the provision so

introduced will prevail over any implicated section that conflicts with it. See Cisneros v. Alpine 6

Ridge Group, 508 U.S. 10, 18 (1993) (stating that the use of a "notwithstanding" clause "clearly

signals the drafter's intention that the provisions of the 'notwithstanding'section override conflicting

provisions of any other section"); Lane v. West, 11 Vet.App. 412, 413 (1998) (per curiam order)

 The phrase "this part" refers to part 3 of title 38, encompassing sections 3.1 to 3.2600. 6

9
(interpreting a clause beginning with "notwithstanding" to exempt CUE motions from the general

rule that this Court has jurisdiction only over appeals in which an NOD was filed on or after

November 18, 1988); see also Stoll v. Nicholson, 401 F.3d 1375, 1380 (Fed. Cir. 2005)

(characterizing the language "[n]otwithstanding anyother provision of law" as a "nullifying clause"). 

The second clause, "at any time after VA issues a decision on a claim," imposes a single

limitation: that relevant records be submitted anytime after VA issues a decision on a claim rather

than before. In the present case, there is no dispute that Mr. Emerson submitted service department

records after VA had issued a decision on his claim for service connection for PTSD: the claim was

initially denied in February 2003 and subsequently granted in June 2011; he submitted the service

department records in July 2012. The third clause requires that the official service department

records received or associated with the claims file (1) be relevant to the claim, (2) have been in

existence when VA first decided the claim, and (3) not have been associated with the claims file

when VA first decided the claim. Here, there is no dispute that the official service department

records Mr. Emerson submitted in 2012 were arguably relevant to his claim, existed at the time VA

first decided the service-connection claim in 2003, and had not been associated with the claims file

when VA first decided the claim in 2003. If the requirements of these clauses are met, the ensuing

operative clause mandates that "VA will reconsider the claim." 38 C.F.R. § 3.156(c)(1); see Stewart

v. Brown, 10 Vet.App. 15, 18 (1997) (explaining that the phrase "will also be considered" is

"mandatory language"); see also United States v. UPS Customhouse Brokerage, Inc., 575 F.3d 1376,

1382 (Fed. Cir. 2009) ("'Will' is a mandatory term, not a discretionary one."). Thus, based on the

plain language of § 3.156(c)(1), VA was required to reconsider the veteran's claim for service

connection for PTSD.

3. Arguments Counter to the Plain Language of 38 C.F.R. § 3.156(c) Are Not Persuasive

Despite the clarity of (c)(1)'s language, the Secretary argues that VA is not required to

"reconsider the claim" for service connection for PTSD in this case. The Secretary's primary

assertion is that § 3.156(c)(1) is not applicable in Mr. Emerson's case because he was granted service

connection in June 2011, before service department records were sent to VA by the veteran and

associated with his claims file. The provision, he contends, applies only "when VA has denied a

claim but later receives relevant official service department records." Secretary's Br. at 14 (internal

10
quotation marks omitted). At oral argument, the Secretary supplemented this argument by urging

that paragraph (c)(1) be read in the context of the section in which it appears, namely § 3.156, titled

"New and material evidence." Oral Argument Recording at 32:40-33:17; 55:04-10. The concept

of reopening a claim via the submission of "new and material evidence," the Secretary asserts,

"presupposes that a claim has been denied." Id. at 32:42-55.

Initially, we note that the Secretary's argument—that the VA decision immediately prior to

receipt of official service department records must have been a denial for § 3.156(c) to apply—

confuses matters, because in this case it wrongly focuses on the claim filed in August 2010, which

was granted in June 2011, rather than on the initial September 2000 claim for service connection for

PTSD, which was denied in February 2003 and remained denied until 2011. Although both Mr.

Emerson's 2003 original claim and his 2010 claim sought the same ultimate benefit—disability

compensation based on service connection for PTSD—the language of (c)(1) makes clear that "the

claim" subject to reconsideration is the original claim. Section 3.156(c)(1) references "when VA

first decided the claim." This is even clearer in VA's 2005 notice of proposed rulemaking, which

stated that, "[i]n 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."

70 Fed. Reg. at 35,388 (emphasis added). And this reading of (c)(1) is consistent with the fact that,

if VA makes an award made based all or in part on VA's reconsideration of the official service

department records, (c)(3) provides an effective date for that award of either "the date entitlement

arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R.

§ 3.156(c)(3) (emphasis added).

In addition, it is significant that nothing in the plain language of (c)(1) states that, for the

provision to be applicable, the claim at issue must have been denied immediately prior to the

submission of official service department records. Paragraph (c)(1) indicates that application of the

provision begins when "VA issues a decision on a claim." It goes on to say that "VA will reconsider

the claim" upon receipt of "relevant official service department records that existed and had not been

associated with the claims file when VA first decided the claim." 38 C.F.R. § 3.156(c)(1). The

regulation does not say when VA issues a denial on a claim or when VA first denied a claim. "The

11
Secretary knows how to write a regulation," and we do not normally ascribe omissions to "a mistake

in draftsmanship." Meedel v. Shinseki, 23 Vet.App. 277, 282 (2009).

Moreover, we reject the Secretary's appeal to the context of (c)(1). Although the context in

which a provision appears may aid in determining its meaning, see, e.g., Tatum v. Shinseki,

26 Vet.App. 443, 448 (2014), the problem with the Secretary's argument is that the language of

subsection (c) goes out of its way to distance itself from other parts of § 3.156. Paragraph (c)(1)

begins and ends with two "nullifying clause[s]," Stoll, 401 F.3d at 1380, the first stating that the

entire paragraph operates "[n]otwithstanding any other section in this part," and the second stating

that VA must reconsider a claim "notwithstanding paragraph (a) of this section." And, as the Federal

Circuit has observed, "[i]n contrast to the general rule, § 3.156(c) requires . . . VA to reconsider a

veteran's claim when relevant service department records are newly associated with the veteran's

claims file, whether or not they are "new and material" under § 3.156(a)." Blubaugh, 773 F.3d at

1313 (emphasis added). Therefore, we find no merit in the Secretary's position and hold that the

plain language of the regulation required VA to reconsider the 2003 claim.

Not only would holding § 3.156(c) inapplicable in this case be contrary to the plain language

of the regulation, it would work a substantial injustice against Mr. Emerson. The primaryreason Mr.

Emerson's PTSD claim was granted in 2011 was due to an amendment codified at § 3.304(f)(3),

which reduced the evidentiary standard in certain cases based on the acknowledgment of "the

inherently stressful nature of the places, types, and circumstances of service in which fear of hostile

military or terrorist activities is ongoing." 75 Fed. Reg. at 39,843; see also Ervin v. Shinseki,

24 Vet.App. 318, 320 (2011). The Secretary's argument is essentially that, because VA applied

§ 3.304(f)(3) to grant service connection, it is prohibited from applying an otherwise applicable

remedial regulation, § 3.156(c)(1), in this case. If the plain language of either regulation were to

compel such a result, we would be obliged to agree with the Secretary regardless of any unfairness

in a particular case. But the language of neither regulation requires that outcome here. Indeed, it

would be odd if § 3.304(f)(3), whose "main goal" is "'[i]mprove[d] timeliness, consistent

decision-making, and equitable resolution of PTSD claims,'" Ervin, 24 Vet.App. at 324 (quoting 74

Fed. Reg. at 42,618), were to prevent application in this case of § 3.156(c), an otherwise pertinent

12
regulation that is premised on the notion that "'a claimant should not be harmed by an administrative

deficiency of the government,'" Mayhue, 24 Vet.App. at 279 (quoting 70 Fed. Reg. at 38,389).

Thus, we hold that, based on the plain language of § 3.156(c)(1), upon receiving official

service department records in 2012, VA was required to "reconsider the claim" for service

connection for PTSD that was denied in February 2003, notwithstanding the fact that service

connection for PTSD was granted in 2011. Because the Board erred as a matter of law in failing to

ensure that VA complied with this regulatory obligation, the Court will set aside the portion of the

May 2014 Board decision denying an earlier effective date for PTSD and remand that matter for

additional development, if necessary, and readjudication consistent with this decision. See Tucker

v. West, 11 Vet.App. 369, 374 (1998).

In so holding, we offer a few final observations. At oral argument, the Secretary appeared

to concede that the law to be applied during VA's (c)(1) reconsideration is current law, rather than

the law that was in effect at the time the claim was previously denied, as would be the case when

adjudicating a motion to reverse or revise a decision based on clear and unmistakable evidence

(CUE). Oral Argument Recording at 37:39-38:35 (stating that reconsideration under (c)(1) "doesn't

get rid of the intervening . . . facts and law that exist today" and that VA "is again going to

readjudicate that claim based on the most efficient way to award service connection," which is based

on "a medical opinion that links the veteran's PTSD to a fear of hostile military activity"); cf.

Robertson v. Shinseki, 26 Vet.App. 169, 174 (2013) (noting that a CUE finding in a prior decision

may be based on a finding that "the law then in effect was incorrectly applied"). But these statements

do not provide enough legal context or analysis to permit the Court to craft a holding regarding the

law to be applied during reconsideration. The Board must decide this issue on remand.

Furthermore, although the Secretary raised concerns as to the impact on VA of cases such

as these, we note that this regulation was devised by VA, and the question of an earlier effective date

under (c)(3) arises only if VA determines that an award is warranted based all or in part on the newly

associated official service department records. Blubaugh, 773 F.3d at 1314. The fact that newly

associated official service department records must be at least partially decisive as to an award made

under (c)(1), see 38 C.F.R. § 3.156(c)(3), leaves unresolved a critical question as to whether the

records in this case satisfy that requirement.

13
However, the question of whether the service records associated with Mr. Emerson's claims

file in 2012 satisfy the requirement of "an award based all or in part on the newly associated official

service department records," § 3.156(c)(3), is one that the Court is not capable of resolving. 

Resolution of this question would involve initial fact finding, and this is therefore not the appropriate

forum for such resolution to occur. Because the meaning and significance of the service records 7

submitted by the veteran to VA in 2012 are factual issues that must be addressed by the Board in the

first instance, the Court expresses no opinion on them. See 38 U.S.C. § 7261(c); Kyhn v. Shinseki,

716 F.3d 572, 577-578 (Fed. Cir. 2013) (declaring that this "Court's fact finding in the first instance

exceeded its jurisdiction to review the Board based on the record before the Board"); Shipley v.

Shinseki, 24 Vet.App. 458, 464-465 (2011) (vacating the Board's denial of an earlier effective date

for service-connected PTSD and remanding for the Board to "address the applicability of § 3.156(c)

in the first instance" where "the Board has not yet made any factual findings pertinent to the

application of this regulation"); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)

(noting "the general rule that appellate tribunals are not appropriate fora for initial fact[]finding").

In sum, although the Court ventures no opinion as to the merits of VA's reconsideration of

the claim under (c)(1), or the availability of an earlier effective date under (c)(3), we reiterate our

holding that, upon receiving official service department recordsin 2012, and notwithstanding the fact

that service connection for PTSD was granted in 2011, VA was required pursuant to (c)(1) to

"reconsider the claim" for service connection for PTSD that was denied in February 2003, and the

Board erred in failing to ensure that VA complied with this obligation. 

B. Higher Initial Disability Evaluation 

Mr. Emerson also argues that the Board provided inadequate reasons or bases for denying

an initial PTSD evaluation in excess of 50% by failing to undertake the proper analysis for assigning

evaluations to mental disorders and by failing to discuss relevant, favorable evidence. Appellant's

For example, although Mr. Emerson asserts that the letter "C" in the Air Medal Worksheet indicates that his 7

helicopter missions were combat, Reply Br. at 2, the Secretary maintains that "C" denotes transport missions, Oral

Argument Recording at 38:40-39:11. There is nothing in the Board decision or the record before the Court that settles

this dispute. Nor did the Board decision address the notation of Tet Counter Offensive in the veteran's Form 20, which

was associated with the claims file at the same time as the Air Medal Worksheet, R. at 35. 

14
Br. at 18-30; Reply Br. at 10-15. Applying well-settled law, we agree that this matter must be set

aside and remanded for readjudication.

The Board must provide a statement of the reasons or bases for its determination adequate

to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate

review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995);

Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board

must analyze the credibility and probative value of evidence, account for evidence that it finds

persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable

to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.

Cir. 1996) (table).

When assigning a disability evaluation for PTSD, the Board must consider the veteran's

condition in light of the rating criteria found in 38 C.F.R. § 4.130, Diagnostic Code (DC). See

Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 n.1 (Fed. Cir. 2013). Here, the Board determined

that Mr. Emerson's PTSD was 50% disabling in accordance with the factors listed in DC 9411 for

that level of impairment, namely:

Occupational and social impairment with reduced reliability and productivity due to

such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped

speech; panic attacks more than once a week; difficulty in understanding complex

commands; impairment of short- and long-term memory (e.g., retention of only

highly learned material, forgetting to complete tasks); impaired judgment; impaired

abstract thinking; disturbances of motivation and mood; difficultyin establishing and

maintaining effective work and social relationships.

38 C.F.R. § 4.130, DC 9411 (2016). The Board determined that Mr. Emerson's PTSD did not more

closely approximate the criteria for a 70% evaluation under DC 9411, namely:

Occupational and social impairment, with deficiencies in most areas, such as work,

school, family relations, judgment, thinking, or mood, due to such symptoms as:

suicidal ideation; obsessional rituals which interfere with routine activities; speech

intermittently illogical, obscure, or irrelevant; near-continuous panic or depression

affecting the ability to function independently, appropriately and effectively;

impaired impulse control (such as unprovoked irritability with periods of violence);

spatial disorientation; neglect of personal appearance and hygiene; difficulty in

adapting to stressful circumstances (including work or a worklike setting); inability

to establish and maintain effective relationships.

Id.

15
Use of the term "such as" in the criteria for § 4.130 evaluation indicates that the list of

symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of

all, most, or even some of the enumerated symptoms to assign to a 70% evaluation. 

Vazquez-Claudio, 713 F.3d at 115; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir.

2004); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002). However, because "[a]ll nonzero

disability levels [in § 4.130] are also associated with objectively observable symptom[s]," and the

plain language of the regulation makes it clear that "the veteran's impairment must be 'due to' those

symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating

the particular symptoms associated with that percentage, or others of similar severity, frequency, and

duration." Vazquez-Claudio, 713 F.3d at 116-17. "[I]n the context of a 70[%] rating, § 4.130

requires not only the presence of certain symptoms but also that those symptoms have caused

occupational and social impairment in most of the referenced areas." Id. at 117. Thus, assessing

whether a 70% evaluation is warranted requires a two-part analysis: "The . . . regulation

contemplates[: (1)] initial assessment of the symptoms displayed by the veteran, and if they are of

the kind enumerated in the regulation[; and (2)] an assessment of whether those symptoms result in

occupational and social impairment with deficiencies in most areas." Id. at 118.

In the present case, the Board determined that a 70% evaluation for PTSD was not warranted

as follows:

The claims file shows that the [v]eteran is currently working. During the January

2011 examination, his relationship with his supervisor and co-workers was noted as

being fair. Also, the January 2012 examiner noted that the [v]eteran did not have

symptoms like impaired judgment or thinking, gross impairment in thought processes

or communication, suicidal ideation, neglect of personal appearance and hygiene, or

intermittently illogical, obscure, or irrelevant speech. Finally, during his July 2012

hearing, the [v]eteran stated that he used to get in fights when he was "a lot younger''

but is not doing that anymore. He also indicated that he is having less suicidal

thoughts. He also added that he did not have illogical speech, and did not recently

get panic attacks.

R. at 15-16 (citations omitted).

Mr. Emerson notes several purportedly favorable pieces of evidence that relate to the 70%

criteria that the Board did not discuss. For example, the veteran observes that the Board did not

mention the June 2002 notation that the veteran compulsively locked and rechecked house and car

16
locks, R. at 364, even though the 70% criteria lists "obsessional rituals which interfere with routine

activities." Similarly, the veteran contends that the Board, although finding that the January 2012

examination did not find evidence of symptoms such as suicidal ideation or illogical speech, failed

to discuss evidence of these symptoms contained in the January 2012 examination and the July 2012

testimony before the Board. R. at 33, 366. The veteran's principal brief argues these and other

omissions in detail, see Appellant's Br. at 18-30, and we need not recount them all here. Moreover,

the Court notes that the Board did not cite the evidence presented in the June 2002 private medical

opinion. Based on the Court's holding in Part II.A.2, supra, that VA is obliged to "reconsider the

claim" pursuant to § 3.156(c)(1), the Board may deem such evidence pertinent to any retroactive

award assigned. Thus, for these reasons, and the reasons set forth in the veteran's briefs, the Court

agrees that the Board's reasons or bases for not assigning a 70% evaluation were inadequate. 

Accordingly, this portion of the Board decision will be set aside and remanded for additional

development, if necessary, and readjudication. See Tucker, 11 Vet.App. at 374.

On remand, Mr. Emerson is free to present any additional arguments and evidence to the

Board 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). The Court reminds the Board that "[a]

remand is meant to entail a critical examination of the justification for [the Board's] decision,"

Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner

in accordance with 38 U.S.C. § 7112.

III. CONCLUSION

After consideration of the parties' briefs, the record on appeal, and the governing statutes,

regulations, and case law, the May 12, 2014, Board decision is SET ASIDE, and the matters are

REMANDED for additional development, if necessary, and readjudication consistent with this

decision.

17