Harris v. McDonough, Case Number 20-2547, decided February 6, 2021 involves a veteran seeking a writ of mandamus to force the VA to render a decision regarding a request to reopen based on a new and material evidence the VA’s prior character of discharge determination.
The veteran received an other than honorable discharge (OTH). A 2010 VA RO decision found the OTH discharge was dishonorable for purposes of entitlement to VA benefits based on willful and persistent misconduct. The decision noted several AWOL periods and that there was no evidence or allegation of insanity.
Five years later the veteran sought service connection for PTSD, but was a month later the RO told the veteran “it was unable to process his claim for benefits because the April 2010 determination that his COD was a bar to VA benefits was final.” The veteran followed up with evidence of a stressor (seeing a combat death) and a medical opinion from a private psychologist. Several years later in January 2018, he submitted another statement explaining that after his Iraq deployment he was distrustful of others and angry at his command and that he started missing time because he was worried about what he might do to others.
In February 2018 the VA notified the veteran it would not process his claim because the 2010 decision was a bar to benefits and was final. The veteran filed a notice of disagreement from that decision. The VA followed up with a standard letter saying they would issue a SOC, but then notified him is October 2018 NOD was untimely as it was more than a year after the 2010 decision and that he would have to either file a supplemental claim, HLR request, or appeal to the Board.
Counsel for the veteran contacted the VA and explained the veteran had tried to reopen the 2010 COD determination, but the VA refused to process the claim.
“Distilled to their essence, Mr. Harris's arguments are that (1) his January 2018 claim for benefits, when read in conjunction with other evidence submitted since April 2010, included a request to reopen the April 2010 COD determination and that (2) VA is refusing to adjudicate that matter. For the reasons set forth below, the Court finds Mr. Harris's arguments persuasive and holds that he is entitled to a writ compelling the Secretary to issue an appealable decision as to whether the evidence submitted since the April 2010 COD determination is new and material with respect to whether his COD is a bar to VA benefits.”
Id. at *3. The Court then reviewed the three requirements for a writ of mandamus: “(1) The petitioner must demonstrate the lack of adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that issuance of the writ is warranted.” Id. at *4.
First the VA argued the veteran would seek an upgrade from the service, but the Court noted VA adjudicators must make a formal character of discharge determination when presented with a claim for a service member with OTH service. The Court noted “what Mr. Harris seeks through this writ is a VA decision that will allow him to avail himself of the regular appeals process, not a substitute for that process. Thus, the Court cannot conclude that the possibility of seeking a discharge upgrade from the service department is an adequate alternative means for Mr. Harris to obtain relief that would bar issuance of a writ in this matter.” Id. at *4.
Second, the VA argued the veteran could submit new and material evidence as to his discharge but the court noted this argument is based on one of two assumptions: “(1) that the new evidence submitted after the April 2010 decision is not material and, therefore, Mr. Harris has not yet met his burden to reopen the COD determination; and (2) that there is no post-April 2010 COD decision for Mr. Harris to appeal because the February 2018 letter was a mere notification.” As to the first assumption, the VA argued the new evidence is not material because it related to the PTSD claim and not the COD decision. The Court noted “the Secretary appears to be adjudicating whether new and material evidence has been submitted for the first time in his response to the Court's order. The
Secretary has not explained why a claimant's alleged failure
to present a winning argument allows VA
to evade its statutory obligation to issue a decision affecting the provision
of VA benefits….In other words, the Secretary has not identified—nor has the
Court located—any authority permitting VA to decline to adjudicate a request to
reopen a claim based on new and material evidence on the basis that the
evidence in question is not new and material.” Id. at *5.
The Court then turned to the second assumption: “The Secretary asserts that Mr. Harris may not appeal the February 2018 letter informing him that his COD remained a bar to VA benefits because it is a mere notification and not a decision subject to appeal. But a decision subject to appeal is, in essence, the relief Mr. Harris seeks, and to which he is statutorily entitled…. And because Mr. Harris's entitlement to a decision is guaranteed by statute, the Court declines to accept the Secretary's assertion that filing a second request to reopen the COD determination based on new and material evidence is an adequate alternative means to obtaining a decision as to the first request to reopen.” Id. at *5.
Third, the VA argued the veteran could appeal the January 2020 RO decision that his October 2018 NOD was untimely or file a CUE claim. The Court noted the veteran “does not dispute VA's determination that the April 2010 COD decision is final or assert that it contains CUE. He wants VA to issue an appealable decision regarding his claim for benefits and the character of his discharge. And it is clear from the pleadings that the Secretary has not issued, and does not intend to issue, such a decision.” Id. at *5.
Then, the Court: “considered whether any other adequate alternative means of relief are available to Mr. Harris, including whether he could file a new NOD with the January 2020 RO decision not to accept his October 2018 NOD on the basis that the February 2018 notification letter should be considered an appealable decision. And if the ultimate question at issue was whether the Court should compel VA to consider valid and process an NOD, issuing a writ might be a substitute for the appeals process. Here, however, the February 2018 notification letter, on its face, specifies that no adjudication was rendered, see Pet. at 21 (stating that VA is "unable to process" the claim), which is the precise relief sought, id. at 1. And as already noted, VA has a statutory obligation to adjudicate VA benefits claims. See 38 U.S.C. § 511(a). While the distinction is subtle in this case, it is nonetheless sufficiently significant that the Court is persuaded that this alternative method of relief is not adequate.” Id. at *6.
This decision is an interesting set of facts, but helpful especially as to what the court says about the second Cheney factor (the petitioner must demonstrate a clear and indisputable right to the writ). The Court noted: “the Court has explained that petitioners have a statutory right to decisions affecting the provision of benefits. See 38 U.S.C. § 511(a); Chisholm v. McDonald, 28 Vet.App. 240, 243 (2016). Furthermore, petitioners have a "clear and indisputable right to such a decision." Rosinski v. Wilkie, 31 Vet.App. 1, 11 (2019). Consequently, the Court concludes that the second Cheney condition—that petitioners show a clear and indisputable right to issuance of a writ—is met.” Id. at *6. The VA increasingly is becoming so form centric with an apparent lack of training that it simply will ignore or refuse to process what should be processed. This reminder that a decision for which a veteran is entitled is going to support a writ.
Decision by Chief Judge Bartley and Judges Pietsch and Falvey.
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