Davis: Section 3.156(c), Scope of a Claim, and Harmless Error

Davis v. McDonough, Opinion Number 18-4371, was decided May 18, 2021 and involves 3.156(b) and submission of new and material evidence within the appeal period and the Court’s application of harmless error.

The Court explained:

Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim.1 Caselaw says that, if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.

Id. at *1.

However, as applied to this case, the Court determined that even if the Board erred, such error was harmless.  Specifically, the Court wrote:

The Board concluded that VA responded in May 2004 to the evidence submitted, and it is obvious from the record before us that this response constituted the consideration required by § 3.156(b). In other words, any mistake the Board later made in finding the evidence not new or material couldn't have prejudiced the veteran because he received precisely what he contends he was due: consideration of the evidence. Given this, the Court affirms the portion of the Board decision denying an earlier effective date under § 3.156(b).

Id. at *2.

The Court then stated it accepted:

for the sake of argument that Mr. Davis is right and the Board is wrong: that the 2003 statements permissibly clarified that what the veteran submitted in December 2001 was properly construed as a compensation claim for lupus with associated joint and psychiatric problems and not multiple compensation claims based on unrelated disabilities. We further assume, again without deciding, that the Board clearly erred in finding the 2003 statements not new and material.  But Board error does not automatically require setting aside a Board decision. When adjudicating appeals, this Court must "take due account of the rule of prejudicial error."

Id. at *7-8.  The Court then stated that if 3.156(b) applied, the RO had an obligation to consider the 2003 statements as having been filed in connection with the claim which was pending.  But, it then stated a May 2004 RO decision did precisely that.  While discussing the May 2004 RO decision, the Court concluded:

What is clear from the record is the result of its action: a merits decision on compensation for the disabilities identified in the 2003 statements, based on the theories raised in the 2003 statements (lupus arising in service, depression resulting from lupus), and in light of the information and evidence asserted in the 2003 statements.

Id. at *9.  At oral argument, the veteran’s counsel admitted a RO decision had been issued, but argued the only appropriate response was a SSOC.  However, the Court stated it “discern[ed] nothing in § 3.156(b) or the caselaw that would render an admittedly responsive VA consideration of new and material evidence a nullity based simply on the title of the document in which that consideration occurs.”  Id. at *9.

The Court then explained:

To be clear, a determination that VA fulfilled its duty under § 3.156(b) in the May 2004 RO decision says nothing about the correctness of the May 2004 RO decision. If Mr. Davis had appealed that decision, a higher tribunal might have found error in its assessment of the merits or a deficiency in its duty-to-assist obligations. But § 3.156(b) does not provide a remedy for those sorts of VA mistakes. Its purpose is to prevent VA from ignoring new and material evidence received before a claim's appeal period expires; it accomplishes this by keeping that claim pending until VA directly addresses such evidence. See Mitchell, 27 Vet.App. at 439. The May 2004 RO decision directly addressed the 2003 statements. For purposes of this appeal, that is what matters.

Id. at *10.

The Court did remand an issue related to Section 3.156(c).

C.J. Bartley dissented writing that the May 2004 RO decision did not adjudicate the claim for lupus with the understanding that in-service psychiatric symptoms were manifestations of lupus.  Id. at *13.  She thus concluded, “my disagreement is not with the merits of the 2004 RO decision, but with the fact that the RO did not address the evidence in the manner that § 3.156(b) requires.”

This is an interesting case that explores the intersection of 3.156(c), scope of a claim, and harmless error and I expect it to be appealed.

Decision by Judge Toth and joined in by Judge Falvey.  Dissent by C.J. Bartley.

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