Summary
**Flores-Vazquez v. McDonough, 2021, Fed. Cir.** **Key Topics:** Veterans benefits; effective date of service-connected disability award; 38 C.F.R. § 3.156(c) (reconsideration based on newly obtained service department records); "based all or in part" requirement. **Holding:** The Federal Circuit affirmed the Veterans Court’s denial of an earlier effective date, holding that both the pre-2006 and post-2006 versions of § 3.156(c) require the award of benefits to be based at least in part on the newly obtained service department records. Because the Veterans Court found that the award of service connection for bipolar disorder was not based on the command history records, and that factual finding was unreviewable, the veteran was not entitled to an effective date earlier than the date of his request to reopen.
Topics
Practice areas
Questions Presented
- Whether the award of benefits for bipolar disorder with depression was based at least in part on the newly obtained service department records such that an earlier effective date is available under 38 C.F.R. § 3.156(c).
- Whether the Veterans Court applied the correct legal standard in determining that the award was not based on the new records.
Holdings
- The Veterans Court did not err in its interpretation of § 3.156(c). Both the pre-amendment and post-amendment versions 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. The Veterans Court applied the correct legal standard, and its factual finding that the award was not based on the new records is not reviewable by the Federal Circuit.
Key quotations
“The evidence in this case [was] certainly not compelling. Nevertheless, service 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.” (5)
“the grant of service connection for the psychiatric disorder at issue here was not based in any way on the new service records.” (10)
“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.” (12 (attachment))
Factual background
Enrique Flores-Vazquez served in the Navy from April 1984 to April 1988. In November 1998, he filed a claim for service connection for depression, alleging he witnessed traumatic events while aboard the USS Kitty Hawk. The claim was denied in 1999. In 2005, he sought to reopen the claim. A VA psychiatric examination in May 2005 diagnosed bipolar disorder with depression and opined it was likely due to in-service illness. The regional office denied the claim again. While the appeal was pending, the VA obtained declassified command histories of the USS Kitty Hawk for 1986 and 1987, which corroborated the veteran's reports of a fire and a death. In 2010, the Board granted service connection for bipolar disorder with depression, relying primarily on the 2005 VA examination and noting the command histories but discounting their relevance. The Board set the effective date as January 2005, the date of the request to reopen. The veteran sought an earlier effective date of November 1998 under 38 C.F.R. § 3.156(c), arguing the award was based in part on the newly obtained service records.
Procedural history
Enrique Flores-Vazquez initially filed a claim for service connection for depression in November 1998, which was denied in September 1999. He filed a request to reopen in January 2005, and after a VA examination in May 2005, the regional office denied the claim again. While his appeal to the Board of Veterans' Appeals was pending, the VA received command history records of the USS Kitty Hawk in 2008 and 2009. In February 2010, the Board granted service connection for bipolar disorder with depression, setting the effective date as January 2005 (the date of the request to reopen). Flores-Vazquez appealed the effective date, seeking an earlier effective date of November 1998 under 38 C.F.R. § 3.156(c). The Board denied the earlier effective date, and the Veterans Court affirmed. The Federal Circuit reviewed the Veterans Court's decision.