Calhoun v. McDonough, Case Number 21-6124, decided January 9, 2024 involves the effective date of TDIU and determines “that an issue remains active—that is, a decision on the issue remains pending and does not become final, including for effective date purposes—when a claimant files a supplemental claim within one year of an adverse Board decision.” Id. at *2. Effectively, the Court noted the prohibition against free standing earlier effective date claims is not implicated in the AMA when the veteran has continuously prosecuted his claim.
The question was whether the issue of an earlier effective date for TDIU was a freestanding earlier effective date claim. Importantly, “it is well established that the Board lacks the authority to review such a claim, which occurs when a claimant files a claim seeking an earlier effective date after the decision assigning that effective date has become final(and is not pursuing one of the exceptions to finality). Rudd v. Nicholson, 20 Vet.App. 296, 299 (2006). If the matter before the Court today involves a freestanding earlier effective date claim, the Board lacked authority to adjudicate the matter, and the proper remedy is for the Court to vacate the Board decision and dismiss the appeal seeking an earlier TDIU effective date.” Id. at *3.
The Court began by discussing the differences between the legacy appeal system and the AMA, particularly as regards the concept of finality and options following a Board decision.
The Court noted that under the legacy system, a claimant could not seek to reopen a final effective date determination and “once an effective date decision became final in the legacy system, that decision was not subject to readjudication absent an assertion of clear and unmistakable error, an order from the Chairman granting reconsideration of a Board decision, or the Board's sua sponte correction of obvious error.” Id. at *3-4.
The Court then pivoted to an explanation of the AMA and noted “the finality of an AMA benefits determination is forestalled when a claim is continuously pursued—that is, whenever the claimant elects one of the three review lanes within 1 year after an AOJ decision or files a supplemental claim within 1 year after a decision by the Board or the Court. Accordingly, an AMA decision does not become final until the 1-year period after a decision by the AOJ, the Board, or the Court has expired without an action in accordance with section 5110(a)(2) by the claimant.” Id. at *5.
The Court then effectively overruled Rudd and Leonard in the context of AMA cases and explained: “Under the legacy system, Rudd and Leonard barred freestanding earlier effective date claims because they were impermissible attempts to overcome the finality of a prior decision. Leonard, 405 F.3d at 1337 (holding that allowing freestanding earlier effective date claims would "vitiate the rule of finality"); Rudd, 20 Vet.App. at 300 (same); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (holding that, because Congress explicitly provided certain exceptions to the rule of finality, it did not intend to allow other exceptions). But as discussed above, the revised version of section 5110 under the AMA includes the concept of the continuously pursued claim; expressly provides that claims are continuously pursued when a supplemental claim is filed within 1 year of a Board or Court decision; and directs that, when a claim is continuously pursued, the effective date of an award may be as early as the date the claim was initially filed. 38 U.S.C. § 5110(a)(1), (2)(D). Thus, continuously pursued AMA claims are, as the term suggests, continuously pursued—that is, they have not yet become final. And it logically follows that claimants who continuously pursue an earlier effective date are not seeking to overcome or vitiate the finality of a prior decision because there is not yet a final decision; Rudd and Leonard are simply not for consideration.” Id. at *7.
The Court then turned to the merits of the claim and found the Board provided inadequate reasons and bases for denying an earlier effective date for TDIU.
This decision clarifies the concept of a continuously prosecuted case in the AMA and how it is simply different than the older legacy system.
Decision by Chief Judge Bartley and joined in by Judges Pietsch and Toth.
To know more about whether Thomas Andrews can help you, please visit my website.
No comments:
Post a Comment