United States Court of Appeals

for the Federal Circuit

______________________ 

ENRIQUE M. FLORES-VAZQUEZ,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2019-1780

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 17-3989, Judge Joseph L. Toth.

______________________ 

Decided: April 30, 2021

______________________ 

EVAN TYLER SNIPES, Veterans Legal Advocacy Group, 

Arlington, VA, for claimant-appellant. Also represented by 

HAROLD HAMILTON HOFFMAN, III. 

SOSUN BAE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, for respondent-appellee. Also represented by JEFFREY

B. CLARK, MARTIN F. HOCKEY, JR., ROBERT 

EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK 

SCADDEN, Office of General Counsel, United States 

Department of Veterans Affairs, Washington, DC.

______________________ 

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2 FLORES-VAZQUEZ v. MCDONOUGH

Before NEWMAN, DYK, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK.

Dissenting opinion filed by Circuit Judge NEWMAN.

DYK, Circuit Judge.

Enrique Flores-Vazquez appeals a decision of the Court 

of Appeals for Veterans Claims (“Veterans Court”) upholding a denial of an earlier effective date for a service-connected disability. We affirm.

BACKGROUND

This case presents a question of interpretation of 38 

C.F.R. § 3.156(c), a regulation of the Department of Veterans Affairs (“VA”). The current version of § 3.156(c) allows 

the reconsideration of a previously denied claim and the

availability of an earlier effective date when service-connected benefits have been allowed if VA receives “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) (2021). But an earlier effective date 

can only be granted if the award of benefits was “made 

based all or in part” on the newly obtained records. Id.

§ 3.156(c)(3). The question is whether the grant of benefits 

to Mr. Flores-Vazquez was based on such service department records.

I

Mr. Flores-Vazquez served on active duty in the Navy 

from April 1984 to April 1988. In November 1998, Mr. Flores-Vazquez submitted a claim for service connection for 

depression that he claimed began during service and for 

which he received treatment while onboard the U.S.S. Kitty 

Hawk. In March 1999, during an outpatient mental-health 

examination, Mr. Flores-Vazquez stated that he had witnessed several accidental deaths during active service, including “a man being sucked inside the nose of an 

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FLORES-VAZQUEZ v. MCDONOUGH 3

airplane.” J.A. 102. At the time, Mr. Flores-Vazquez did 

not submit service department records supporting the existence of the incidents.

In September 1999, the regional office denied service 

connection for depression. The regional office noted that

“[a]lthough there [was] a record of treatment in service for 

one episode of acute reactive depression, no permanent residual or chronic disability subject to service connection 

[was] shown by service medical records or demonstrated by 

evidence following service.” Id. at 120. The regional office 

also treated his claim as asserting service connection for 

schizoaffective disorder but denied it as well, noting that 

“[t]his condition [was] not shown to have occurred in military service, nor was it shown to have been aggravated or 

caused by service, nor did it develop to a compensable degree within one year of military discharge.” Id. at 121. Mr. 

Flores-Vazquez did not appeal this decision, and it became 

final.

II

In January 2005, there began a series of decisions that 

led to the decision under review. Some detailed description 

of those proceedings is necessary.1 First, Mr. FloresVazquez filed a request to reopen his denied 1998 claim for 

service connection for depression. The regional office then

ordered a medical examination, which Mr. Flores-Vazquez

underwent in May 2005. The examiner diagnosed bipolar 

disorder with depression and determined that the condition was “due to or the result of in[-]service illness.” Id.

at 128. The examiner noted Mr. Flores-Vazquez’s 

1 In the interest of brevity, we have excluded the history of Mr. Flores-Vazquez’s claim for post-traumatic 

stress disorder (“PTSD”), which was ultimately denied on 

the ground that Mr. Flores-Vazquez does not suffer from

PTSD. 

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4 FLORES-VAZQUEZ v. MCDONOUGH

recollection of “very stressful episodes on the ship in which

he served,” including “a fire” and seeing another service 

member being “fragmented by [a] plane running into him.” 

Id. at 125. 

In June 2005, the regional office nonetheless denied 

service connection on the grounds that the VA medical

opinion was “of little probative value because it appeared 

to be based on the veteran’s unsupported report of continued psychiatric symptoms following service.” FloresVazquez v. Wilkie, No. 17-3989, 2018 WL 6817851, at *1 

(Vet. App. Dec. 28, 2018).

Mr. Flores-Vazquez then submitted additional, nonservice-related records in 2006 to support his claim, but the 

regional office denied his claim. Mr. Flores-Vazquez appealed to the Board of Veterans’ Appeals (“Board”). In 2008 

and 2009, while Mr. Flores-Vazquez’s appeal was pending, 

the VA received service department records in the form of 

the 1987 command history of the Kitty Hawk and a report 

from the Department of Defense regarding the 1986 command history of the Kitty Hawk.

On February 1, 2010, the Board decided Mr. FloresVazquez’s appeal of his claim for service connection for bipolar disorder with depression, as well as his claim for 

PTSD. The Board found that “[t]he evidence in this case 

[was] certainly not compelling.” J.A. 144. “Nevertheless,” 

the Board found, referring to the May 2005 VA examination:

[S]ervice records [did] clearly show psychiatric 

symptoms and a VA medical examiner, with benefit of examination of the Veteran and review of the 

record, ha[d] offered an opinion that it [was] at 

least as likely as not that the Veteran’s bipolar disorder with depression [was] causally related to service. Essentially, the examiner viewed the 

in[-]service symptoms as most likely being the 

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FLORES-VAZQUEZ v. MCDONOUGH 5

initial presentation of the disability now diagnosed 

as bipolar disorder with depression.

Id.

Despite finding the evidence in the case not compelling, 

the Board afforded “considerable weight” to the opinion of 

the May 2005 VA examiner, stating:

The Board observes that the May 2005 VA examiner is identified as a medical doctor in psychiatry. 

The opinion is therefore entitled to considerable 

weight based on the education and training of the 

examiner. Based on the evidence, the Board finds 

that service connection is warranted for bipolar disorder with depression.

Id.

The Board also considered but did not rely on the command histories of the Kitty Hawk:

The record also contains the command history of 

the U.S.S. Kitty Hawk for the years 1986 and 1987. 

The records show the death of a soldier by the same 

name as the Veteran reported in a night flight operations mishap on the flight deck in September 

1986. The command history also shows that a fire 

occurred in March 1987 aboard the ship, but due to 

the efforts of the crew and fire-fighting teams, a 

major disaster was averted.

Id. at 143–44. But the Board “discounted” the “relevance” 

of the command histories. Flores-Vazquez, 2018 WL 

6817851, at *2. The Board noted that, “[s]ignificantly, the 

May 2005 examiner acknowledged the Veteran’s report of 

the fire and a death of an individual during service, but the 

examiner diagnosed bipolar disorder, not PTSD.” J.A. 145.

The Board, having found entitlement for service connection for bipolar disorder, remanded. The regional office 

granted service connection for bipolar disorder with 

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6 FLORES-VAZQUEZ v. MCDONOUGH

depression with a rating of 30% and an effective date of 

January 24, 2005, the date the regional office had received 

Mr. Flores-Vazquez’s request to reopen his claim denied in 

1999. 

III

Mr. Flores-Vazquez appealed the rating decision to the 

Board, seeking an earlier effective date of November 1998, 

the date he originally filed a claim for service connection 

for depression. Mr. Flores-Vazquez argued, in relevant 

part, that the regional office failed to reconsider his claim 

under 38 C.F.R. § 3.156(c). The Board, on May 5, 2015, denied an earlier effective date under 38 C.F.R. § 3.156(c)(2). 

On appeal, the Veterans Court vacated and remanded the 

Board’s May 2015 decision on July 15, 2016, with instructions to “address the applicability” of the version of 38 

C.F.R. § 3.156(c) that existed prior to amendment in 2006. 

J.A. 182.2

On October 10, 2017, on remand from the Veterans 

Court, the Board found that § 3.156(c) did not apply because the Board’s award of benefits in 2010 “was not based 

on” the new service department records. Id. at 28. On further appeal to the Veterans Court, the Veterans Court also 

found that the award of benefits “was not based in any way 

on the new service records,” and thus, an earlier effective 

date under § 3.156(c) was not available. Flores-Vazquez, 

2018 WL 6817851, at *5.

Mr. Flores-Vazquez appeals. 

2 Mr. Flores-Vazquez appealed the Veterans Court’s 

July 2016 remand decision, and we dismissed for lack of 

finality. Flores-Vazquez v. Snyder, 676 F. App’x 1012 (Fed. 

Cir. 2017).

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FLORES-VAZQUEZ v. MCDONOUGH 7

DISCUSSION

Our jurisdiction to review decisions of the Veterans 

Court is limited by statute. See 38 U.S.C. § 7292. We review “the validity of a decision of the [Veterans] Court on a 

rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in 

making the decision.” Id. § 7292(a). We have jurisdiction 

to decide “all relevant questions of law” and to “set aside 

any regulation or any interpretation thereof (other than a 

determination as to a factual matter)” relied upon in the 

decision of the Veterans Court that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law.” Id. § 7292(d)(1)(A). “Our review of these questions is de novo.” Manzanares v. Shulkin, 863 F.3d 1374, 

1376 (Fed. Cir. 2017). But absent a constitutional question, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as 

applied to the facts of a particular case.” 38 U.S.C. 

§ 7292(d)(2).

The VA “is required to ‘reopen’ a finally adjudicated 

claim under 38 C.F.R. § 3.156(a) if the claimant submits 

new and material evidence in support of the claim.” Jones 

v. Wilkie, 964 F.3d 1374, 1378 (Fed. Cir. 2020). “In the case 

of an award that results from reopening under section 

3.156(a), the effective date of the award is the date the request for reopening was made or the date of entitlement, 

whichever is later.” Id. at 1379 (citing 38 U.S.C. § 5110(a), 

38 C.F.R. § 3.400(q)(2), and Blubaugh v. McDonald, 773 

F.3d 1310, 1313 (Fed. Cir. 2014)). However, under 38 

C.F.R. § 3.156(c), an exception to the general effective date 

rule is available if VA receives new service department records and awards benefits based on those new service department records. Jones, 964 F.3d at 1379.

The versions of the regulation, before amendment in 

2006 and after amendment, are set forth in an attachment 

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8 FLORES-VAZQUEZ v. MCDONOUGH

to this opinion. Mr. Flores-Vazquez argues that the “plain 

language” of the pre-amended version of § 3.156(c) “did not 

require that the service records contributed to service connection before determining whether an earlier effective 

date was warranted” and makes alternative arguments under both the pre-amended and amended versions of the regulation as applied to his case. Appellant’s Br. 23. We need 

not decide which version of § 3.156(c), before amendment 

or as amended in 2006, applies here. Both versions of 

§ 3.156(c) require that the award of benefits be based at 

least in part on the new service department records to qualify for an earlier effective date. 

Mr. Flores-Vazquez’s argument—that the preamended version does not require that the award be based 

on the service department records—is contrary to the plain 

language of § 3.156(c) before it was amended, which required that “[t]he retroactive evaluation of disability resulting from disease or injury subsequently service 

connected on the basis of the new evidence from the service 

department must be supported adequately by medical evidence.” 38 C.F.R. § 3.156(c) (2005) (emphasis added). 

The 2006 amendment was intended to “clarif[y]” that 

the award needs only to be “based all or in part on the records” to qualify for an earlier effective date. New and Material Evidence, 70 Fed. Reg. 35,388, 35,389 (June 20, 2005) 

(Proposed Rule) (emphasis added). The 2006 amendment 

“eliminate[d]” an “ambiguity” of the pre-amendment text of 

§ 3.156(c), which “may be read as requiring an earlier effective date for the award of benefits upon reconsideration 

only when the basis for the award is newly discovered service department records.” Id. (emphasis added). The 2006 

amendment did not eliminate the requirement of § 3.156(c)

that an earlier effective date is available only if the award 

is based at least in part on the newly discovered service 

department records. 

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FLORES-VAZQUEZ v. MCDONOUGH 9

In Blubaugh, we interpreted § 3.156(c) as amended in 

2006 to “only appl[y] ‘when VA receives official service department records that were unavailable at the time that 

VA previously decided a claim for benefits and those records lead VA to award a benefit that was not granted in the 

previous decision.’” 773 F.3d at 1314 (quoting New and Material Evidence, 70 Fed. Reg. at 35,388 (Proposed Rule)). 

In Jones, we similarly held that under the amended version 

of § 3.156(c), “the key issue [is] whether the award was attributable in whole or in part to the newly obtained service 

records.” 964 F.3d at 1380. If the award of benefits is “not 

predicated in any way on records that were not before the 

[VA] at the time of the initial decision on the claim,” then 

“the proper effective date [is] the date of the request for reopening, not the date of the initial claim.” Id.3

Here, the Veterans Court found that “the grant of service connection for the psychiatric disorder at issue here 

was not based in any way on the new service records.” Flores-Vazquez, 2018 WL 6817851, at *5.

In the 2017 decision, the Board found that “the subsequent service connection grant by the Board in February 

2010 was not based on the January 2008 [Department of 

Defense] report and associated declassified command histories obtained after the final September 1999 rating decision.” J.A. 28. The Board found that the Board’s 2010

“decision clearly identifie[d] the previously available service treatment records documenting depression treatment 

and the May 2005 VA medical opinion as the bases for the 

award of service connection.” Id. at 27. The Board further 

noted that “[t]he favorable May 2005 VA medical opinion 

[was] not contingent on the verification of any particular 

stressor from service department records” and that “the 

3 We express no opinion on other aspects of the 

amended version of § 3.156(c) or the pre-amended version.

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10 FLORES-VAZQUEZ v. MCDONOUGH

verification of the stressors occurred after issuance of the 

VA medical opinion in question.” Id. at 28. 

Likewise, on December 28, 2018, in the decision on appeal here, the Veterans Court determined:

As the Board decision on appeal and other documents of record make plain, the Kitty Hawk command histories submitted in 2008 played no role in 

the grant of service connection for bipolar disorder. 

The favorable resolution of the claim turned on a 

2005 VA examination and opinion that, in turn, 

was based on the veteran’s service medical records 

that had always been part of the claims file. 

Flores-Vazquez, 2018 WL 6817851, at *5. Because of this 

finding, the Veterans Court concluded that neither version 

of § 3.156(c) authorized an earlier effective date for 

Mr. Vazquez’s claim. 

Mr. Flores-Vazquez argues that the “Veterans Court 

required the Kitty Hawk records alone to carry the 2010 

Board’s grant.” Appellant’s Br. 31. This is not what the 

Veterans Court said. The Veterans Court applied the correct standard under § 3.156(c), which requires that, if the 

award is “not predicated in any way on records that were 

not before the [VA] at the time of the initial decision on the 

claim,” then “the proper effective date [is] the date of the 

request for reopening, not the date of the initial claim.” 

Jones, 964 F.3d at 1380.

Mr. Flores-Vazquez also contends that the Veterans 

Court applied an impermissibly high standard of what the 

term “based in part” requires, as used in § 3.156(c) after the 

2006 amendment. Appellant’s Br. 28. Mr. Flores-Vazquez 

argues that “[b]ase” means “to lay a foundation” and that 

“[t]he Kitty Hawk records laid a foundation to the 2010 

Board’s grant” and “the Kitty Hawk records played a role 

in the 2010 Board’s grant.” Id. at 27–29. We see no error 

in the legal standard applied by the Veterans Court. To 

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FLORES-VAZQUEZ v. MCDONOUGH 11

the extent that Mr. Flores-Vazquez argues that the Veterans Court made a factual error in determining that the 

Kitty Hawk records “played no role in the grant of service 

connection for bipolar disorder,” Flores-Vazquez, 2018 WL 

6817851, at *5, we have no jurisdiction to review that factual challenge. See 38 U.S.C. § 7292(d)(2). 

CONCLUSION

We have considered Mr. Flores-Vazquez’s remaining 

arguments and find them unpersuasive. Because the Veterans Court did not err in its interpretation of 38 C.F.R. 

§ 3.156(c), we affirm.

AFFIRMED

COSTS

No costs.

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12 FLORES-VAZQUEZ v. MCDONOUGH

ATTACHMENT

Prior to amendment in 2006, § 3.156(c) provided:

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 identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on 

the basis of the new evidence from the service department must be supported adequately by medical evidence. 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).

The current version of § 3.156(c), aside from the March 

2021 amendment to subsection (c)(2), is the same as 

amended in 2006. Compare New Evidence, 86 Fed. Reg. 

15,413, 15,414 (Mar. 23, 2021) (Final Rule); with New and 

Material Evidence, 71 Fed. Reg. 52,455, 52,457 (Sept. 6, 

2006) (Final Rule). Section 3.156(c) currently provides:

(1) 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 

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FLORES-VAZQUEZ v. MCDONOUGH 13

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. Such records include, but are not 

limited to:

(i) Service records that are related to a claimed inservice event, injury, or disease, regardless of 

whether such records mention the veteran by 

name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to 

VA any time after VA’s original request for service 

records; and

(iii) Declassified records that could not have been 

obtained because the records were classified when 

VA decided the claim.

(2) 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 or from any other official 

source.

(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 entitlement arose or the date 

VA received the previously 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.

(4) A retroactive evaluation of disability resulting 

from disease or injury subsequently service connected on the basis of the new evidence from the 

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14 FLORES-VAZQUEZ v. MCDONOUGH

service department must be supported adequately 

by medical evidence. 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) (2021).

Case: 19-1780 Document: 48 Page: 14 Filed: 04/30/2021
United States Court of Appeals 

for the Federal Circuit ______________________

ENRIQUE M. FLORES-VAZQUEZ,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2019-1780

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 17-3989, Judge Joseph L. Toth.

______________________

NEWMAN, Circuit Judge, dissenting.

This appeal concerns the interpretation of 38 U.S.C. 

§ 7292(d) as implemented by 38 C.F.R. § 3.156(c), and specifically the effective date of disability payments to a veteran when service-connection is established on 

reconsideration of a previously denied claim.1 Regulation 

38 C.F.R. § 3.156(c) provides that when the veteran’s 

1 Flores-Vazquez v. Wilkie, No. 17-3989, 2018 WL 

6817851 (Vet. App. Dec. 28, 2018) (“Vet. Ct. Op.”); No. 08-

15 411, 2010 WL 1475320 (Bd. Vet. App. Feb. 1, 2010) 

(“2010 BVA Op.”).

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2 FLORES-VAZQUEZ v. MCDONOUGH

previously-denied claim is refiled and granted on the basis 

of new and material evidence received from a military service department, the effective date of compensation is retroactive to the filing date of the original claim.

The Court of Appeals for Veterans Claims (“Veterans 

Court”) adopted the government’s position that this retroactive provision applies only when the new service department evidence is the sole basis for the finding of service 

connection. That is not required by the statute and regulation, and is inconsistent with the purpose of these enactments. Preserving the error, the panel majority now rules

that the Federal Circuit does not have jurisdiction to review this statutory/regulatory interpretation. From my 

colleagues’ erroneous rulings, I respectfully dissent.

I

JURISDICTION

38 U.S.C. § 7292(d)(1) authorizes Federal Circuit review of Veterans Court decisions on “all relevant questions 

of law, including interpreting constitutional and statutory 

provisions.” Review is here sought for interpretation of the 

provisions governing the effective date of disability compensation when the veteran’s claim was initially denied, 

but then was granted after receipt of new and material evidence from the military service department. The issue before us is the interpretation of this law, for the Veterans 

Court had accepted the government’s argument that the 

Board of Veterans Appeals (“BVA”) incorrectly interpreted 

the law. Review of this interpretation is squarely within 

our assigned jurisdiction.

The effective date of compensation for service-connected disability is a recurring issue, for a veteran’s claim 

is often initially denied, and subsequently granted as additional evidence is provided. The practice is the subject of 

ongoing regulatory clarification; 38 C.F.R. § 3.156 

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FLORES-VAZQUEZ v. MCDONOUGH 3

implements 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400. Relevant provisions of 38 C.F.R. § 3.156 are:

§ 3.156(a). New evidence means existing evidence 

not previously submitted to agency decisionmakers. Material evidence means existing evidence 

that, by itself or when considered with previous evidence of record, relates to an unestablished fact 

necessary to substantiate the claim.

* * *

§ 3.156(c). 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. . . . The retroactive evaluation of disability 

resulting from disease or injury subsequently service connected on the basis of the new evidence 

from the service department must be supported adequately by medical evidence. 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 (before 2006 amendment).

The Veterans Court interpreted § 3.156(c) as allowing 

benefit of the original claim filing date “only when a claim 

is granted because of newly associated service records.” 

Vet. Ct. Op. at *5 (emphasis in original). The government 

states that this means that if the grant could have been 

supported without the new service records, then § 3.156(c) 

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4 FLORES-VAZQUEZ v. MCDONOUGH

does not permit retroactive credit for the original claim 

date. Govt Br. 28.

My colleagues hold that the determination of effective 

date is entirely a factual determination specific to Mr. Flores-Vazquez, and not an interpretation of law applicable to 

all veterans. That is inapt, for the majority interprets 

§ 3.156(c) as a matter of legal construction and meaning, 

applicable to all veterans. It is our assignment under 38 

U.S.C. § 7292(a) to assure that the law is correctly interpreted. Jackson v. Wilkie, 732 F. App’x 872, 875 (Fed. Cir. 

2018) (“As prescribed by statute, our task is to review certain legal determinations relied upon by the Veterans 

Court in deciding a case.”). My colleagues err in holding 

that we do not have jurisdiction of this appeal and the statutory/regulatory interpretation at issue.

On the correct interpretation of § 3.156(c), Mr. FloresVazquez is entitled to the benefit of the filing date of his 

original claim.

II

INTERPRETATION OF § 3.156(C)

A

As summarized in Mayhew v. Shinseki, 24 Vet. App. 

273 (2011): “Read together, §§ 3.156(c) and 3.400(q)(2) provided that the effective date for an award of benefits based 

on newly discovered service department records that were 

previously unavailable may relate back to the date of the 

original claim or date entitlement arose even though the 

decision on that claim may be final.” Id. at 277 (internal 

quotation marks and citations omitted). See also Blubaugh 

v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014) (Section 

3.156(c) views the former decision as reconsidered, 

whereby the later decision is retroactive to the filing date 

of the original claim).

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FLORES-VAZQUEZ v. MCDONOUGH 5

Mr. Flores-Vazquez filed his original claim for serviceconnected psychiatric disorders in 1998; he received a psychiatric examination that recorded his asserted in-service 

stressors and treatment, but the claim was denied in 1999. 

In 2005 he filed a request for reconsideration, and a Veterans Administration (“VA”) psychiatric examination in 2005 

diagnosed Mr. Flores-Vazquez with various afflictions including “[b]ipolar disorder I, depress[ion], with psychotic 

features.” J.A. 127. The VA examiner in 2005 concluded

that the diagnosis “is at least as likely as not . . . due to or 

the result of in-service illness.” J.A. 127–28. However, the

claim was again denied in 2006, J.A. 131–34, the BVA finding the examiner’s medical opinion to be “not new and material” evidence because it was based on stressors “not 

related [to] military service.” Vet. Ct. Op. at *1 (summarizing BVA’s 2006 rating decision); J.A. 132.

In 2008, the BVA obtained Command History records 

from the Department of Defense concerning events on the 

U.S.S. Kitty Hawk in 1986 and 1987, the BVA having requested such records in relation to a separate claim by Mr. 

Flores-Vazquez for PTSD. The Command History records

had previously been “classified.” J.A. 104.

In 2010, the BVA granted service connection for psychiatric disabilities as claimed by Mr. Flores-Vazquez, the 

BVA stating that the newly provided Kitty Hawk records 

were confirmation that was previously absent:

The record also contains the command history of 

the U.S.S. Kitty Hawk for the years 1986 and 1987. 

The records show the death of a soldier by the same 

name as the Veteran reported in a night flight operations mishap on the flight deck in September 

1986. The command history also shows that a fire 

occurred in March 1987 aboard the ship.

2010 BVA Op. at *4.

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6 FLORES-VAZQUEZ v. MCDONOUGH

The BVA stated that these Kitty Hawk records corroborated the shipboard events reported by Mr. FloresVazquez, and were new and material evidence as contemplated by § 3.156(c). The BVA explained that the Command History records, together with other evidence 

starting with a March 1982 medical report, established service connection. 2010 BVA Op. at *2; id. at *4–5 (explaining that its determination was based on “all the evidence, 

including that pertinent to service,” specifically including 

the Command History and numerous medical reports including the 2005 examination). The BVA concluded that:

“Based on the evidence, the Board finds that service connection is warranted for bipolar disorder with depression”. 

Id. at *5.

However, the BVA set the effective date for compensation as the date Mr. Flores-Vazquez refiled his claim in 

2005, and the Veterans Court affirmed. The issue before 

us is whether § 3.156(c) was correctly interpreted to bar recourse to the original filing date, for the BVA explicitly included the newly provided Command History records, in 

combination with the other evidence, as establishing service connection.

B

The Veterans Court recognized that the issue of effective date turned on the interpretation of § 3.156(c). In 

2017, the BVA told the Veterans Court that although the 

BVA’s 2010 grant of service connection for Mr. FloresVazquez stated that the grant was based on a combination 

of the Command History evidence together with the May 

2005 psychiatric examination, the 2010 decision only identified “the previously available service treatment records 

documenting depression treatment and the May 2005 VA 

medical opinion as the bases for the award of service connection.” Flores-Vazquez v. Wilkie, No. 11-16 375, 2017 WL 

6050350, at *8 (Bd. Vet. App. Oct. 10, 2017) (“2017 BVA 

Op.”).

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FLORES-VAZQUEZ v. MCDONOUGH 7

Thus the BVA in 2017 stated that in 2010 it did not 

rely on the Command History records, and the Veterans 

Court concluded that “they didn’t affect its decision to 

grant service connection.” Vet. Ct. Op. at *4. The Veterans 

Court acknowledged BVA’s statements in 2010 that its decision was based on all evidence including the Command 

History records. Id. at *2 (“In granting service connection 

for bipolar disorder, the Board specifically mentioned notations in the Kitty Hawk command histories of a serviceman’s death and a fire.”); id. at *4 (“It is apparent from the 

record that the Board reconsidered the veteran’s psychiatric claim and that the Kitty Hawk command histories were 

duly taken into account as part of that analysis.”). However, the Veterans Court accepted the government’s interpretation that “§ 3.156(c) permit[s] assignment of an 

earlier effective date only when a claim is granted because 

of newly associated service records.” Id. at *5 (emphasis in 

original). The Veterans Court ruled that “the Board’s grant 

in 2010 was based primarily on the 2005 VA medical opinion.” Id. at *3.

The Veterans Court accepted the BVA’s 2017 revision 

of 2005–2010 history, and ruled that Mr. Flores-Vazquez’s 

2005 medical examination sufficed to establish service connection. The court did not mention that the claim was denied based on the 2005 examination, and was not granted 

until after the Command History records were provided. 

Vet. Ct. Op. at *5. The Veterans Court concluded that because the 2005 medical examination, taken alone, supported the grant of service connection, this negated the 

applicability of § 3.156(c).

The court also ruled that if the BVA had indeed relied 

in 2010 on the Command History records, it did so in error, 

for “they neither affected a substantial right that disrupted 

the adjudication’s fundamental fairness nor disturbed the 

Board’s ultimate determination on the claim for an earlier 

effective date.” Vet. Ct. Op. at *5. The court stated that

“the command histories were not relevant to the veteran’s 

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8 FLORES-VAZQUEZ v. MCDONOUGH

bipolar disorder claim.” Vet. Ct. Op. at *5. The Veterans 

Court did not mention that service-connection was denied

on the 2005 medical examination, and was not granted until the command histories were obtained.

On this appeal the government argues that unless the 

newly provided service records are themselves “the basis”

for the grant of service connection, the retrospective benefit 

of § 3.156(c) is not available. Govt Br. 26–27 (“Because the 

command histories were not the basis of award, an earlier 

effective date would not have been warranted under either 

version of the regulation.”). As construed by the government, § 3.156(c) requires that if other evidence could have 

supported the grant of service connection, the newly provided service department records cannot achieve retroactive benefit of the original claim date, although that benefit 

was denied until the service records were considered. My 

colleagues err in sustaining this flawed position.

C

It is not disputed that service-connection was denied to 

Mr. Flores-Vazquez until the Kitty Hawk records were provided in 2008. The government acknowledges that the 

BVA “[a]s part of its analysis” in 2010 “reviewed the command histories of the Kitty Hawk, and noted that the May 

2005 examiner acknowledged Mr. Flores-Vazquez’s report 

of his in-service stressors.” Govt Br. 7 (citation omitted). 

The record is clear that the Command History evidence

combined with the earlier medical evidence changed the

BVA’s decision, on reconsideration of its prior denial of service connection. 2010 BVA Op. at *5. There is no support 

for the government’s position that a combination of old and 

new evidence cannot meet the conditions of § 3.156(c). 

Govt Br. 26–27.

On the correct interpretation of § 3.156(c) it appears 

undisputed that the conditions for retroactive benefit were

met. From the court’s incorrect statutory/regulatory 

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FLORES-VAZQUEZ v. MCDONOUGH 9

interpretation, and the ensuing flawed conclusion as applied to this veteran, I respectfully dissent.

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