Wiker: Lack of Notice Means a Decision Remains Open

Wiker v. McDonough, Case Number 21-5454, decided May12, 2023 involves a VA denial where the notice did not state the claim was denied.

This was an appeal from an earlier effective date denial for left eye blindness.  The veteran argued the Board erred in finding the VA fulfilled its duty to notify the veteran of a 1965 decision denying service connection for cataracts and thus the decision was not final.  The Court held

“that VA failed to give Mr. Wiker proper notice because the January 1965 initial notice didn't tell him that VA denied service connection for cataracts. As for the actual knowledge exception, although we hold that it can apply in this context, we find that the evidence relied on by the Board fails to show that Mr. Wiker knew that he could appeal VA's October 1965 corrective notice or that he knew his deadline to file such an appeal. And as for the reasonable person exception, even if we assume that it could apply here, the differences between VA's initial notice and the corrective notice would not let a reasonable person know that the denial could be appealed or what the time limit was for doing so. Thus, we hold that Mr. Wiker's appeal never became final, reverse the Board's contrary determinations, and remand this claim for the Board to consider the correct effective date based on the 1964 claim.”

Id. at *2.

The veteran was discharged for bilateral cataracts and immediately sought service connection, which was denied because the RO found it was a congenital defect.  However, the VA never sent the decision to the veteran.

However, the VA did send a letter saying service connection was granted but rated noncompensable.  Several months later, the VA sent a letter saying the prior letter was error and service connection had been denied previously.  That letter stated nothing about appellate rights.

The Board admitted the first letter was confusing, but found it was cured by the second letter.  After a court remand, the Board again found the first letter was not sent to the veteran, but cured by either the second letter or the veteran’s actual knowledge of the denial and appellate rights.

The Court began by noting a claim remains open until finally adjudicated, but final adjudication requires proper notification of the decision.  Id. at *4.  Part of the notice required in 1965 was (1) the reason for the decision, (2) the claimant's right to appeal by filing an NOD, and (3) the time limit within which an NOD could be filed.  The Court found the first letter failed by not stating he had been denied service connection and why.  Id. at *6.

The Court considered whether the veteran had actual knowledge of the denial, but found the evidence did not show he had actual knowledge prior to the time to appeal elapsing. 

This is an interesting decision showing that it is not impossible to find apparently final decisions that in fact remain unadjudicated.

Decision by Judge Falvey and joined by Judges Allen and Jaquith. 

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