Pickett v. McDonough, Case Number 2022-1057, decided April 6, 2023, was a case before the Federal Circuit and concerned a claim for an earlier effective date and whether the VA had complied with the notice requirements of under 38 CFR 3.156(b). It is truly the companion case to Hampton.
The veteran had been service connected for PTSD and coronary artery disease (CAD) effective April 2004. The claim for CAD was granted in 2010 pursuant to Nehmer and the 2004 effective date was because that is when he first mentioned herbicide exposure. He appealed that decision seeking a higher rating and during that claim also submitted a claim for TDIU, explaining his CAD and PTSD prevent him from working and he last worked in June 2007.
A January 2013 RO decision listed the TDIU application as evidence considered and denied TDIU. An April 2014 RO decision also denied the claim. Later he was connected for TDIU with an effective date of January 2017, but argued under 3.156(b) the VA failed to assess whether his 2011 TDIU application was new and material evidence that supported his claim, meaning his 2004 claim remained pending. Thus, the question was whether the 2004 claim remained pending.
The CAVC determined that based on the 2013 RO decision, the VA essentially treated the TDIU application was new and material evidence and considered it in connection with the pending CAD claim.
The Federal Circuit framed the issue as:
“we must determine whether the VA may indicate its compliance with § 3.156(b) implicitly, as the Veterans Court found, or must do so explicitly, as Mr. Pickett argues. If Mr. Pickett is correct, and the VA failed to make an explicit finding as to whether the 2011 VA Form 21-8940 is new and material evidence, then Mr. Pickett contends that this evidence relates to the pending April 2004 claim and thus his April 2004 claim remains pending. As such, Mr. Pickett argues that he could be entitled to TDIU prior to 2017. On the other hand, if Mr. Pickett’s interpretation of § 3.156(b) is wrong, then the April 2004 claim stream ended when he failed to appeal the January 2013 or April 2014 RO decisions and he is not entitled to TDIU before 2017.”
Id. at *6.
The Federal Circuit began by explaining Section 3.156(b) provides “s that the VA must treat (1) new and material evidence (2) received prior to the end of the appeal period (3) as having been filed in connection with the claim that was pending at the beginning of the appeal period. While the VA must comply with the regulation, nothing in the text of the regulation states that the VA must expressly state its analysis under this regulation.” Id. at *6.
The veteran argued Section 3.156(b) requires more than addressing evidence, “In other words, the VA must do more than list evidence that is new and material and filed before the end of the appeal period as evidence considered in the case. He argues that an assessment under § 3.156(b) “must be explicitly stated in [a VA] decision.”” Id. at *7. As support, the veteran particularly pointed to the cases of Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) and Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014).
However, the Federal Circuit disagreed. It explained: “the VA’s obligation under § 3.156(b) is mandatory, but our case law does not require the VA’s decision to include specific words to fulfill the requirements of § 3.156(b). Instead, consistent with the text of § 3.156(b), Bond and Beraud allow for an implicit finding so long as there is some indication that the VA determined whether the submission is new and material evidence and, if so, considered such evidence in evaluating the pending claim.” Id. at *9.
I find the Court’s rationale as to the implicit denial seems to lack a logical step. But, the take-away for veterans and advocates is you had better appeal when you know.
Decision by Judge Stoll and joined by Judges Schall and Cunningham.
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