MARTHA P. MANZANARES, Claimant-Appellant
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 14-3646, Judge Mary J. Schoelen.
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, argued for claimant-appellant.
F. Hockey, Jr., 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.; Brian D. Griffin, Derek
Scadden, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
Newman, Dyk, and Hughes, Circuit Judges.
Manzanares, a veteran, has a primary service-connected
bilateral ankle condition. During the pendency of a claim for
increased rating for her ankle condition, Ms. Manzanares
submitted a claim for a back condition as secondary
service-connected. She appeals from a decision of the United
States Court of Appeals for Veterans Claims ("Veterans
Court") that affirmed a decision by the Board of
Veterans' Appeals ("Board"), denying her an
earlier effective date for her back condition. We affirm.
case presents the question whether a claim for increased
rating for any service-connected condition necessarily
includes a claim for a secondary service-connected condition
by virtue of 38 C.F.R. § 3.310(a), with a result that
Ms. Manzanares is entitled to an earlier effective date. That
regulation states that a "secondary condition shall be
considered a part of the original condition."
Manzanares served on active duty from May 1986 until June
1991. In June 1992, she successfully sought an award of
service connection from the Department of Veterans Affairs
("VA") for, inter alia, a history of
stress fractures in both legs; she was assigned a
February 22, 2006, she submitted a claim for increased rating
for injuries to both ankles incurred during service. Then, in
August 2006, the VA noted that this condition was previously
evaluated as a history of stress fractures in both legs and
assigned a ten-percent rating for each ankle. The VA assigned
an effective date of February 22, 2006.
April 2007, Ms. Manzanares filed a notice of disagreement
with the rating decision, asserted entitlement to a higher
rating, and filed a claim for "[e]ntitlement to service
connection for degenerative disc disease lumbar spine as
secondary to bilateral ankle disabilities." J.A. 31.
March 19, 2008, the VA granted secondary service connection
for "degenerative arthritis and disc disease, lumbar
spine" and assigned a rating of twenty percent with an
April 27, 2007 effective date. J.A. 33. Ms. Manza-nares then
appealed to the Board, arguing that the VA should have
awarded an effective date of February 22, 2006, for the
secondary service-connected condition. Section 3.156(b)
provides that, for a pending claim, "[n]ew and material
evidence received prior to the expiration of the appeal
period . . . will be considered as having been filed in
connection with the claim which was pending at the beginning
of the appeal period." 38 C.F.R. § 3.156(b). Ms.
Manzanares argued that the secondary service connection claim
should be treated as new and material evidence within the
meaning of this regulation making the secondary service
connection claim part of the ankle claim and considered to
have been filed on February 22, 2006, the date of her ankle
claim. The Board rejected this argument, noting that the
effective date for service connection is the later of the
date the VA receives the claim or the date that entitlement
arose, and concluded that Ms. Manzanares's secondary
service claim was not filed until April 27, 2007.
Manzanares then appealed to the Veterans Court. The Veterans
Court found no error in the Board's decision, concluding
that the secondary service connection claim was not part ...