JAMES L. KISOR, Claimant-Appellant
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 14-2811, Judge Alan G. Lance, Sr.
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, argued for claimant-appellant.
Helman, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
respondent-appellee. Also represented by Benjamin C. Mizer,
Robert E. Kirschman, Jr., Martin F. Hockey, Jr.; Y. Ken Lee,
Samantha Ann Syverson, United States Department of Veterans
Affairs, Washington, DC.
Reyna, Schall, and Wallach, Circuit Judges.
SCHALL, CIRCUIT JUDGE.
L. Kisor, a veteran, appeals the January 27, 2016 decision of
the United States Court of Appeals for Veterans Claims
("Veterans Court") in Kisor v. McDonald,
No. 14-2811, 2016 WL 337517 (Vet.App. Jan. 27, 2016). In that
decision, the Veterans Court affirmed the April 29, 2014
decision of the Board of Veterans' Appeals
("Board") denying Mr. Kisor entitlement to an
effective date earlier than June 5, 2006, for the grant of
service connection for his post-traumatic stress disorder
("PTSD"). Kisor, 2016 WL 337517, at *1. We
pertinent facts are as follows: Mr. Kisor served on active
duty in the Marine Corps from 1962 to 1966. Id. In
December of 1982, he filed an initial claim for disability
compensation benefits for PTSD with the Department of
Veterans Affairs ("VA") Regional Office
("RO") in Portland, Oregon. Id.
Subsequently, in connection with that claim, the RO received
a February 1983 letter from David E. Collier, a counselor at
the Portland Vet Center. J.A. 17. In his letter, Mr. Collier
stated: "[I]nvolvement in group and individual
counseling identified . . . concerns that Mr. Kisor had
towards depression, suicidal thoughts, and social
withdraw[a]l. This symptomatic pattern has been associated
with the diagnosis of Post-Traumatic Stress Disorder (DSM III
March of 1983, the RO obtained a psychiatric examination for
Mr. Kisor. In his report, the examiner noted that Mr. Kisor
had served in Vietnam; that he had participated in
"Operation Harvest Moon"; that he was on a search
operation when his company came under attack; that he
reported several contacts with snipers and occasional mortar
rounds fired into his base of operation; and that he
"was involved in one major ambush which resulted in 13
deaths in a large company." J.A. 19-20. The examiner did
not diagnose Mr. Kisor as suffering from PTSD, however.
Rather, it was the examiner's "distinct
impression" that Mr. Kisor suffered from "a
personality disorder as opposed to PTSD." J.A. 21. The
examiner diagnosed Mr. Kisor with intermittent explosive
disorder and atypical personality disorder. Id. Such
conditions cannot be a basis for service connection.
See 38 C.F.R. § 4.127. Given the lack of a current
diagnosis of PTSD, the RO denied Mr. Kisor's claim in May
of 1983. J.A. 23. The RO decision became final after Mr.
Kisor initiated, but then failed to perfect, an appeal.
Kisor, 2016 WL 337517, at *1.
5, 2006, Mr. Kisor submitted a request to reopen his
previously denied claim for service connection for PTSD. J.A.
25. While his request was pending, he presented evidence to
the RO. This evidence included a July 20, 2007 report of a
psychiatric evaluation diagnosing PTSD. See J.A.
100-11. It also included a copy of Mr. Kisor's Department
of Defense Form 214, a Combat History, Expeditions, and
Awards Record documenting his participation in Operation
Harvest Moon, and a copy of the February 1983 letter from the
Portland Vet Center. See J.A. 16-17, 27-28. In
September of 2007, a VA examiner diagnosed Mr. Kisor with
PTSD. J.A. 115. The RO subsequently made a Formal Finding of
Information Required to Document the Claimed Stressor based
on Mr. Kisor's statements, his service medical records
(which verified his service in Vietnam with the 2nd
Battalion, 7th Marines), and a daily log from his unit, which
detailed the combat events Mr. Kisor had described in
connection with his claim. J.A. 30.
course, the RO issued a rating decision reopening Mr.
Kisor's previously denied claim. The decision granted Mr.
Kisor service connection for PTSD and assigned a 50 percent
disability rating, effective June 5, 2006. Kisor,
2016 WL 337517, at *1. According to the decision, the rating
was based upon evidence that included the July 2007
psychiatric evaluation report diagnosing PTSD, the September
2007 VA examination, and the Formal Finding of Information
Required to Document the Claimed Stressor. J.A. 32-33. The RO
explained that service connection was warranted because the
VA examination showed that Mr. Kisor was diagnosed with PTSD
due to experiences that occurred in Vietnam and because the
record showed that he was "a combat veteran (Combat
Action Ribbon recipient)." J.A. 33.
November of 2007, Mr. Kisor filed a Notice of Disagreement.
In it, he challenged both the 50 percent disability rating
and the effective date assigned by the RO. Kisor,
2016 WL 337517, at *1. Subsequently, in March of 2009, the RO
issued a decision increasing Mr. Kisor's schedular rating
to 70 percent. In addition, the RO granted a 100 percent
rating on an extraschedular basis, effective June 5,
2006. J.A. 41-45. In January of 2010, the RO
issued a Statement of the Case denying entitlement to an
earlier effective date for the grant of service connection
for PTSD. See J.A. 53-65.
Kisor appealed to the Board. Before the Board, he contended
that he was entitled to an effective date earlier than June
5, 2006 for the grant of service connection for PTSD.
Specifically, he argued that the proper effective date for
his claim was the date of his initial claim for disability
compensation that was denied in May of 1983. See
J.A. 47-48. In support, Mr. Kisor alleged clear and
unmistakable error (CUE) in the May 1983 rating decision; he
also alleged various duty-to-assist failures on the part of
the VA. See J.A. 47-48, 84-87.
Board rejected these arguments. It ruled that the duty to
assist had not been violated, that Mr. Kisor had failed to
establish CUE, and that the RO's May 1983 rating decision
became final when Mr. Kisor failed to perfect his appeal of
the decision. See J.A. 85-88. The Board found no
reason to upset the finality of the May 1983 decision because
"[t]he remedy available to the Veteran was to appeal,
" but he did not do so. J.A. 86.
Board, however, raised "another way to challenge the May
1983 rating decision" that had not been advanced by Mr.
Kisor. J.A. 88. That way turned on whether Mr. Kisor was
eligible for an earlier effective date for his service
connection under the regulation set forth at 38 C.F.R. §
3.156(c). In contrast to 38 C.F.R. § 3.156(a), which
only permits claims to be reopened on the submission of
"new and material" evidence, § 3.156(c) allows
claims to be reconsidered if certain conditions are met.
See 38 C.F.R. § 3.156(c)(1) (noting that §
3.156(c) applies "notwithstanding paragraph (a)").
3.156(c) includes two parts relevant to this appeal.
First, paragraph (c)(1) defines the circumstances
under which the VA must reconsider a veteran's claim for
benefits based on newly-associated service department
[A]t 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 ...