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Blubaugh v. McDonald

United States Court of Appeals, Federal Circuit

December 9, 2014

DANIEL C. BLUBAUGH, Claimant-Appellant,
v.
ROBERT A. MCDONALD, Secretary of Veterans Affairs, Respondent-Appellee

Appeal from the United States Court of Appeals for Veterans Claims in No. 12-483, Judge Alan G. Lance, Sr.

ZACHARY M. STOLZ, Chisholm Chisholm & Kilpatrick, Ltd., of Providence, Rhode Island, argued for claimant-appellant. Of counsel on the brief was CHRISTOPHER J. CLAY, Disabled American Veterans, of Cold Spring, Kentucky. Of counsel were ROBERT V. CHISHOLM and THOMAS R. BENDER, Chisholm Chisholm & Kilpatrick, of Providence, Rhode Island.

SHELLEY D. WEGER, Trial Attorney, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, and SCOTT D. AUSTIN, Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and RACHAEL T. BRANT, Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel was K. Elizabeth Witwer, Attorney, United States Department of Justice, of Washington, DC.

Before O'MALLEY, REYNA, and HUGHES, Circuit Judges.

OPINION

Page 1311

HUGHES, Circuit Judge.

Daniel C. Blubaugh was awarded a disability rating for post-traumatic stress disorder effective July 25, 2008. He now seeks an earlier effective date for that rating. The effective date for a disability rating is generally determined by the date the disabling condition arose, or the date the claim was submitted, whichever is later. A regulation provides an exception to that rule when a claim is granted based on certain service department records that were associated with the veteran's claims file after the claim was first decided. That regulation does not apply to Mr. Blubaugh's case. Accordingly, we affirm.

I

Mr. Blubaugh served in the United States Army from January 1964 to January 1966 and performed duties as a gunner in Vietnam between August and November 1965. In October 1988, Mr. Blubaugh sought service connection for multiple medical conditions, including post-traumatic stress disorder (PTSD).

At that time, the VA obtained his service records, including the report of Mr. Blubaugh's separation from service and his Department of Defense Form 214, which indicated that Mr. Blubaugh served in Vietnam for several months and received the Vietnam Service Medal. In April 1989, the VA notified Mr. Blubaugh that it was denying service connection because his VA psychological examination did not support a diagnosis of PTSD. Mr. Blubaugh did not appeal the VA's decision, and it became final.

In August 1992, Mr. Blubaugh submitted a request to reopen his claim. At that time, the VA associated with his file a Department of the Army (DA) Form 20, which lists the specific dates he served in Vietnam. That form had not been associated with his file at the time of the VA's 1989 decision.

The VA reopened Mr. Blubaugh's claim and performed another psychiatric examination. The VA concluded that this examination did not support a diagnosis of PTSD and further noted the " absence of a definitive confirmable stressor." R. App. of Appellant 29. Accordingly, in June 1993, the VA continued its denial of service connection for PTSD. Mr. Blubaugh did not appeal that decision, and it became final.

Fifteen years later, on July 25, 2008, Mr. Blubaugh filed a second request to reopen his PTSD claim. Unlike his previous submissions, this request included a three-page statement describing his experiences in Vietnam and post-service difficulties. The VA also received, for the first time, medical documentation showing a positive diagnosis of PTSD. Based on this newly submitted evidence, the VA granted Mr. Blubaugh service connection for PTSD and assigned a 10 percent disability rating effective July 25, 2008.

Mr. Blubaugh filed a notice of disagreement, alleging that he should be entitled to an effective date of June 9, 1993. The VA issued a statement of the case, explaining that Mr. Blubaugh was not entitled to an effective date earlier than July 25, 2008, because his earlier claims were not supported by a diagnosis of PTSD. The VA further explained that Mr. Blubaugh's 1992 PTSD claim lacked evidence showing a " confirmable stressor." R. App. of Appellant 73. ...


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