The Court of Appeals for Veterans Claims (CAVC) released their decision in Reynolds v. Collins. I encourage all of you to not only read what happened and why, but also to read about this Veteran’s story as told by Judge Jaquith

The largest moral to the Reynolds story is: Just because VA puts something in writing does not make it legally correct - and in fact it rarely is adequate, even at the Board.

We say that over and over, and it’s important to hear. Many Veterans are denied benefits and it results in them doing something that is legally ill-advised. Good legal advice and strategy is paramount to achieving the best results. Work with accredited parties!

ISSUE: What is the correct effective date when a Veteran re-opens a previously denied and final decision, and with the supplemental appeal, new service departments records are provided or obtained, and those new records “in part,” are the foundation of the new decision rendered that grants a benefit?

PROCEDURAL HISTORY: The Veteran applied for benefits for hearing loss in 1991. VA denied the claimed contentions and the claim became final.

The Veteran reopened his claim 30 years later and with that appeal provided service records and a personal statement. The service records included some duplicative materials, but also included some materials VA didn’t have, which included his citation for the Bronze Star with V device, and the Army Commendation Medal with V device, in addition to the Purple Heart.

The new examiner read his lay statement and read the new records, and the examiner’s opinion took into account the actions that earned him those medals. The Regional Office granted benefits, but assigned July 2020 as the effective date, the date of the exam.

For the record, he got a 70% rating for hearing loss. The man is nearly deaf today.

The Veteran appealed to the Board who assigned May 2020, the date of the supplemental appeal filing, as the effective date, but denied an earlier effective date.

NOTE: The assignment of May 2020 is correct, UNLESS the Veteran meets one of the exceptions, and in this case is all about whether he met the exception or not.

38 C.F.R. §3.156 is the applicable regulation, and most supplemental appeals follow §3.156(a), which use the “new and relevant” standard. But that was only part of the Veteran’s evidence (his personal statement and new medical records); he also submitted “service department records” which are potentially reviewed under subsection (c)(1). The regulation says:

“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.”

Now if the association of new service department records occur, then subsection (c)(3) applies. It says,

“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.”

In short, this means, if service department records are later associated with the cfile and those service department records, all or in part, are used to grant benefits, then VA must assign the effective date of the original claim, in this case, that means an effective date in 1991 - 30 years earlier.

The entire case turned on the words “in part” from subsection (c)(3). What does “in part” mean and did his positive decision rest “in part” on the new service records.

I will spare you the legal analysis of what “in part” means as it spanned 31 pages, including two concurrences, but the facts matter, and the RVSRs incompetence at the Regional Office hurt the Veteran badly, as did the Board’s reliance on it, so let’s discuss the facts first.

There is no question the examiner used the newly associated service records. They used the records as foundation for their opinion and said so in writing.

However, the RVSR did not list the new service records in the evidence list nor did they speak to them in the narrative. On appeal at the Board, the Board relied on the RO’s evidence list and narrative to state that the RO obviously didn’t use the newly associated service records in their decision because they did not even list them in the evidence list - meaning only new and relevant evidence outside of the service records founded their decision; therefore, no earlier effective date.

The Court actually got this case twice, but the first go-around resulted in a joint motion for remand (JMR) to the Board to redetermine whether 38 C.F.R. §3.156(c) applied, but because the JMR did not specifically say (c)(1) and (c)(3), and only generically said (c), the Court was further frustrated by the Board’s second denial. And that frustration was the basis for Judge Pietsche’s concurrence. She did not agree that the record proved the Board properly considered both subsections.

Nonetheless, the Judges were able to come together and agree on what needed to happen.

HOLDING: When service records, previously not associated with the file, are in any way part of the new decision, then 38 C.F.R. §3.156(c)(3) applies and the Veteran is entitled to an earlier effective date.

The Court concluded, “We reiterate that § 3.156(c)(3) unambiguously provides that entitlement to an earlier effective date is possible in a situation where an award of benefits via reconsideration under § 3.156(c)(1) is ‘based . . . in part on’ (causally linked) to newly associated service department records.”

This Veteran won because of little things:

- The Veteran provided the records;

- The examiner stated they used the newly associated service records;

- The records demonstrated circumstances not in the original records.

This Veteran did not win because of the words in the RO decision letter; or frankly, the words in either of the Board’s. All of those decision letters were really badly written from a legal point of view. The RVSRs incompetence and sloppiness, and the Board’s reliance on that inadequately founded and reasoned RO decision almost sank this Veteran. Had it not been for good legal work and the Court’s oversight; the Veteran would have lost 30 years of backpay at 70% (maybe more based on other ratings).

His counsel’s advocacy resulted in a major win for the Veteran.

Lastly, we leave you with Judge Jaquith’s concurrence. It tells the real backstory of the Veteran and his circumstances of service better than I ever could. This isn’t just a story of “Bang. Bang. Loud stuff affected my hearing.” It’s the story of a Veteran with insane bravery and valor displayed in combat, several times, who was also injured by a grenade blast and still carries the shrapnel decades later.

In the words of Judge Jaquith:

"The V devices reflect that Sgt. Reynolds performed acts of valor in combat. The orders announcing the veteran's awards detail his courage. The veteran earned a Bronze Star Medal with a V device for the following bravery involving intense fire: On August 12, 1968, while operating in a mountainous jungle so dense that visibility was limited to a few feet, even in daylight, North Vietnamese soldiers directed small arms and automatic weapons fire on Sgt. Reynolds's unit without warning, wounding his squad leader. 'Sergeant Reynolds immediately assumed command of the squad, and, rallying his men, bravely and skillfully evacuated the wounded squad leader, while directing an intense concentration of friendly fire.' Then, Sgt. Reynolds led his squad back into the dark undergrowth and spearheaded a resolute drive that 'forced the enemy to retreat, abandoning an entire base camp.'

"The veteran earned an Army Commendation Medal with a V device for the following bravery under intense fire: On October 2, 1968, Sgt. Reynolds led his squad in springing an ambush on Viet Cong in jungle terrain, leading to a heavy concentration of return fire by Viet Cong in hiding. Sgt. Reynolds, 'with total disregard for his own safety, moved through the intense hostile fire to each of his men and directed their fire,' resulting 'in the complete elimination of all enemy resistance.'"

Judge Jaquith should be sent a Christmas present by every single Veteran for his words in that concurrence; and Mr. Reynolds deserves to have a beer bought by every member of our country.

Both are honorable men and exactly why we do what we do.

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