Beraud: Earlier Effective Dates, When Is a Claim Still Pending Still Pending Under Section 3.156(b)

Leonard Beraud v. Eric K. Shinseki, Opinion Number 11-726, decided May 17, 2103, concerns the extent to which a claim is still pending after a subsequent decision on the merits and on the same issue.

The veteran suffered a head injury while in the service.  In 1985 he filed for service connection for headaches related to the head injury.  The claim was denied.  The veteran did not file a NOD but did sent a letter explaining his medical records were located at the Naval Reserve Readiness Center in New Orleans. 

The veteran submitted a request to reopen in 1989 and it was reopened but denied in 1990 by the RO.  This decision was not appealed.

Later in 2004, the veteran sought an increased rating for the scar from his head injury and the VA examiner opined the headaches were as likely as not related to his head injury.  As a result the VA granted service connection for the headaches.  The veteran filed a NOD asserting the effective date for the headaches should be when he first filed.  He also asserted CUE as to the 1984 decision.  The Board denied an earlier effective date.

Essentially, the veteran said his 1985 letter notifying the VA that his medical record were at the Naval Reserve Readiness Center gave rise to a pending and unadjudicated claim.  He also argued the 1985 decision committed CUE because the correct facts were constructively in the record (as the RO failed to obtain his VA outpatient records and service records from his Reserve service).

The Court found that a “reasonably raised claim remains pending until there is … an explicit adjudication of a subsequent ‘claim’ for the same disability.”  Id. at *5.  The Court applied to this case to say that even if the 1985 letter constitute new and material evidence, the 1990 decision to reopen and deny on the merits rendered the claim adjudicated.  It also noted the veteran had the opportunity to appeal the 1990 decision.

As to the CUE claim, the Court stated the failure to obtain records is unpersuasive as the breach in the duty to assist cannot constitute CUE.    The Court also found that citation to Bell v. Derwinksi for the proposition that the records were constructively before the VA was unavailing as Damrel v. Brown had limited Bell by finding it did not apply to situation before Bell was decided in 1992.  However, this still leaves open an issue when challenging a post-Bell decision.

Judge Bartley filed a dissent in which she stated that section 3.156(b) governing a pending claim states the claim remains pending until the new and material evidence is actually considered.  Bartley also noted that in Voracek v. Nicholson the Federal Circuit found the regulation required the VA to assess whether new evidence “and evidence incorporated therein by reference” qualify as material to the original claim.   She leverages this language to say the 1985 letter identifying the location of his records also incorporated his medical records.  She also noted the Naval Reserve medical records appeal to be yet unobtained and states “The majority fails to account for Section 3.156(b)’s emphasis on continuing pendency until consideration of the new evidence and fails to acknowledge the potential effect of this emphasis in Berard’s case, where it appears that his 1985 submission was neither initially nor subsequently considered.”.  Id. at *11.

The strong dissent makes the case likely headed for a panel decision, but seems to undermine the idea that a claim remains pending until actually adjudicated.  Especially in cases where the RO has reopened, but then denies with barely a discussion of the merits.

Decided by Judges Lance, Pietsch, and Bartley.