Rickett: A Misfiled Notice of Appeal or Henderson Continued

William Rickett v. Eric K. Shinseki, Opinion Number 09-2493, decided March 12, 2103, is a full panel decision on what happens when a veteran has sent a notice of appeal to the VA within 120 days.

The veteran sent the NOA to the Office of General Counsel within 120 days.  More than 120 days after the decision, he contacted the Court when he did not hear anything about his notice of appeal.  He recognized his error and sent another notice of appeal along with an attached copy of the letter to the OGC.  The secretary filed a motion to dismiss.

The Court, acting after the Henderson line of cases, found under this set of facts, equitable tolling of the time to file the notice of appeal was allowed and warranted.  The court looked toward the due diligence of the veteran but said that the location element was relaxed in cases of timely misfiling.  However, they said they would also look at the totality of circumstances to determine if equitable tolling was warranted and weighted heavily the veteran’s efforts.  The veteran argued the small print, multiple addresses and lots of information on the notice of rights was confusing and explained his error. 

The Court accepted this explanation under this set of facts, but seemed to attempt to circumscribe the ability to equitable toll.

Judge’s Lance and Hagel concurred saying that due diligence was done if the NOA was sent to the RO or Board and also noted the veteran must act quickly when notified of the misfiling.

Judge Schoelen wrote a concurrence impugning the idea of a strict time line within which a veteran must recognize and correct the mistake.  He noted the long period of time to get a Board decision and stated the VA has created a system where a veteran is conditioned to wait.

The case reveals the shift since Henderson but also the apparent desire to limit equitable tolling to truly exceptional cases.

Per Curiam.

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.

Robertson: A Pardon’s Impact on the Character of Discharge

Tony W. Roberson v. Eric K. Shinseki, Opinion Number 11-3521, decided March 15, 2103, concerns the impact of a presidential pardon on the character of discharge.

The veteran was convicted of a going AWOL and was given a bad conduct discharge, which was listed on his paperwork as a discharge under conditions other than honorable.

In 1974 the veteran filed a claim for VA benefits and the RO denied the claim because the conditions of his discharge precluded VA benefits.

In 1976, he received a presidential pardon through a Reconciliation Service Program created by President Ford.  The pardon proclamation stated the “clemency discharge shall not bestow entitlement to benefits administered by the [VA].”

The veteran applied for VA benefits again in 1977.  The RO denied without any discussion of the presidential pardon.  A character of discharge upgrade was denied by the ABCMR in 1978.  The veteran applied again in 1981.  The RO found the clemency discharge did not have any effect on the prior denial.

This appeal arose from a 2008 denial.  There, the veteran also claimed CUE in the initial determination.

The Court considered the impact of the pardon and specifically looked at Supreme Court case law that initially supported a blotting out of the underlying crime and more recent case law that takes a less expansive view of the impact of a presidential pardon.  They Court ultimately determined that a “Presidential pardon relieves the pardonee of the legal disabilities incident to a conviction of an offense (in this case, the legal punishment of a general court-martial conviction), but does not eliminate the consideration of the conduct … that led to that conviction.”  In other words, the VA will still consider the conduct when characterizing the nature of the discharge.

Decided by Judges Lance, Bartley, and Greenberg.