Picket: 3.156(b) and Implicit Denials

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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Hampton: The CAFC Finds an Implicit Denial of TDIU for Purposes of 38 CFR 3.156(b)

Hampton v. McDonough, Case Number 2022-1359, was decided June 5, 2023 was a case before the Federal Circuit and concerned a claim for an earlier effective date under 38 CFR 3.156(b) and found new and material evidence had been considered and implicitly denied.

The veteran applied for TDIU in 1999 and was denied within a month and did not appeal the decision.  She applied for a migraine headache increase months later and was also denied and did not appeal that decision.  In 2003, the veteran filed a new claim for an increase and the Board ultimately granted TDIU effective from the new claim for an increase, 2003. 

The veteran argued that the 1999 TDIU denial was still pending because she submitted additional evidence within the one year appear window but never received a determination by the VA on whether the evidence was new and material as required by 38 CFR 3.156(b).  The BVA denied saying the 2000 migraine headache increase denial was an implicit denial of the 1999 TDIU claim. 

The Court looked at Pickett v. McDonough, 64 F.4th 1342 (Fed. Cir. 2023) for direction.  The Court explained:

“The facts here are similar to those in Pickett.  Ms. Hampton filed additional evidence within a year of her 1999 TDIU claim being denied: her May 1999 statement to the RO seeking a higher rating for migraines and a May 1999 VA examination report. The RO’s June 1999 decision, and later the Board’s 2000 decision, indicated that the RO considered the May 1999 evidence and did not find reason to increase Ms. Hampton’s rating for migraines. But like the veteran in Pickett, Ms. Hampton argues this was not enough. She argues that the RO was required to make an explicit finding that her May 1999 statement and May 1999 VA examination report were new and material evidence to her 1999 TDIU claim.

This is not what § 3.156(b) requires. Following our precedent in Pickett, all that was required to satisfy § 3.156(b) was some indication that (1) the VA had determined that the May 1999 statement and May 1999 VA examination report were new and material, and (2) the VA considered that evidence as to her 1999 TDIU claim. Both are satisfied here.”

Id. at *7.

The Court noted the RO decision listed the May 1999 VA examination report as evidence considered, addressed what was necessary for an increased migraine rating, and denied in the migraine increase on its merits.  “Although the RO decision did not explicitly list Ms. Hampton’s May 1999 statement as evidence considered, it implied that the RO  onsidered this statement new and material evidence because it acknowledged receiving Ms. Hampton’s May 1999 statement in support of her claim and necessarily issued the RO decision in response to that statement.”  Id. *8.

The Court also found the VA implicitly considered the May 1999 evidence as to the TDIU claim.  The Court explained

“When a veteran has more than one pending claim but only one of those claims is explicitly denied, a related pending claim may still be deemed implicitly denied. Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006). Here, the Veterans Court found that “[t]he Board, by denying the increased evaluation for migraines, on a schedular and extra[-]schedular basis, also implicitly denied any higher ratings.” J.A. 28. We see no legal error with this conclusion. Because the RO’s and the Board’s decisions indicate that they considered the May 1999 evidence as new and material, and because those decisions implicitly denied TDIU, it follows that the VA considered the May 1999 evidence as to Ms. Hampton’s TDIU claim—not just as to her increased rating claim for migraines. Nothing more was required to satisfy § 3.156(b).”

Id. at *8-9. 

I find the Court’s rationale as to the implicit denial seems to lack a logical step.  It is not clear to me that by acknowledging evidence and denying a higher migraine headache, the VA also denied the TDIU claim again in light of the new evidence.  There is simply no indication the issue of TDIU, after the new evidence was submitted, was considered by the VA or a decision was communicated to the veteran.  Additionally, the requirements for a migraine rating versus TDIU are vastly different.  This is a troubling decision.

Decision by Judge Hughes and joined by Judges Taranto and Clevenger.

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Davis: Constructive Possession by the VA

Davis v. McDonough, Case Number 20-5411, decided May 31, 2023 involves the issue of constructive possession and what is before the Board.

The case considered an untimely notice of disagreement and whether the Board erred in not considering evidence submitted by the veteran related to VA’s mailing of a May 2016 decision. 

As to the evidence, the Court began by focusing on the AMA and its allowance that a veteran who appeals to the Board and wants to submit additional evidence must do so within 90 days after the Board’s receipt of the VA Form 10182 (NOD).  The question on appeal was what constituted “receipt” so as to trigger the 90 days.

After filing the NOD, the Board sent a letter stating he had 90 days from the date of the Bar’s receipt of his NOD to submit new evidence.  He responded with a letter noting the VA’s letter and requested the Board postpone any decision for the full 90 days beginning with the VA’s letter acknowledging receipt.  Within 90 days of he VA’s initial letter, but not within 90 days of the date the NOD was sent, counsel submitted a brief along with supporting evidence.

The Board “found that the 90-day window to submit evidence began upon receipt of Mr. Davis's VA Form 10182 NOD on August 14, 2019—not when the Board mailed its September 9, 2019, acknowledgement that it had received his VA Form 10182 NOD. Because the Board found that Mr. Davis's December 5, 2019, evidence submission fell outside the 90-day window (which, according to the Board, ended on November 12, 2019), it concluded that it was unable to consider that evidence.”  Id. at *4. 

The veteran argued to the Court there was a distinction between filing a document and VA’s receipt of a document.  Specifically, “relying on Black's Law Dictionary definitions, Mr. Davis notes that, as applied to NODs, "file" refers to the delivering of the NOD whereas "receipt" means the act of taking possession over the NOD. Appellant's Br. at 7-8; see File, BLACK'S LAW DICTIONARY (11th ed. 2019) ("To deliver a legal document to the court clerk or record custodian for placement into the official record."); Receive, BLACK'S LAW DICTIONARY ("To take (something offered, given, sent, etc.); to come into possession of or get from some outside source."). Using these definitions, he argues that the two words are not synonymous and that Congress acted intentionally in section 7113(c) when it used the Board's "receipt" as the event triggering the 90-day evidence submission window.  To that end, he argues that the Board received his VA Form 10182 NOD on September 9, 2019, the date the EIC uploaded the form to his claims file and the Board acknowledged receipt of the NOD, as opposed to August 14, 2019, the date he faxed it.”  Id. at *6.

The Court explained: “even accepting the argument that "file" and "receipt" refer to  discreet actions, Mr. Davis fails to demonstrate why such a distinction is significant in his case. In other words, although he argues that the dates of filing and receipt are not necessarily the same, he fails to explain how the two dates are different in his case.”  Id. at *6. 

The Court also grappled with the veteran’s argument of constructive possession.  Here, he argued some of the documents pertinent to the timeliness issue were constructively before the Board, specifically a GAO report regarding mailing; two letters from counsel in other cases complaining of not receiving mail; and affidavits cited by the Veteran’s Court in Romero v. Tran, 33 Vet. App, 252 (2021). 

The Court began by saying for constructive possession to occur, (1) the evidence must pre-date the Board decision; (2) the evidence must be within the Secretary’s control (meaning actual or constructive knowledge); and (3) the evidence must be relevant and reasonably connected to the veteran’s claim.  Id. at *9.  The Court also noted the Federal Circuit had rejected a direct relationship test (ie the evidence must bear a direct relationship to the specific veteran for the VA to have constructive possession of it in an individual’s case). 

As to the GAO report, the Court found it was too tenuous of a connection to the timeliness issue for the Board’s to have constructive possession.  As to the letters from the attorney the Court stated letters sent to VA administrators as opposed to adjudicators would not be expected to associated with the veteran’s file.  Id. at *11.  As to the affidavits previously relied upon by the Court in a published decision, the Court determined Romero was decided prior to the Board decision.

Judge Falvey discussed constructive possession more in a concurrence and explained to his thinking:

“The bottom line is, constructive possession is not a "get-out-of-submitting-evidence" card. Instead, it is a tool to make sure that relevant evidence—evidence that tends to prove or disprove a material fact—is included in the record when it can be reasonably expected that VA would have "investigated, gathered, and considered" that evidence. Bowey v. West, 11 Vet.App. 106, 109 (1998).

To this end, the inquiry can include several considerations. Why was the document created? How did VA get it? Is the document so widely known that we can presume VA adjudicators are aware or should be aware of it? If VA knows about the document, is the document relevant to how VA adjudicates claims? Is this the kind of document we would have expected VA to seek out under an applicable duty to assist if the veteran mentioned it to VA? Would we expect VA to address this kind of evidence if it was in the file? This is by no means an exhaustive list. But if the answer to most of these or similar question is "no", then odds are pretty good that the document was not constructively before VA.

Thus, a widely cited report established by Congress to address the relationship between herbicides and service comes in when the claim involves questions about whether herbicides caused the veteran's disability. But anecdotes about nonreceipt of mail from advocates submitted in other cases or sent to VA leadership are out; they are not things we would expect VA adjudicators to be aware of or to investigate and consider in individual cases. The same is true of a GAO report obtained to address the efficiency of VA's mailing practices and not dealing with whether VA fails to send claim documents to claimants, it is simply not relevant. In fact, even if the report had actually been in the record, I would not fault the Board for not addressing it; the report does not deal with whether VA failed to send claim documents to veterans—the issue Mr. Davis cares about. "[T]he Board does not have to discuss all the evidence, but it must discuss the relevant evidence."”

Id. at *17-18.

While I believe ultimately the filing versus receipt distinction is unlikely to win, I believe the Court’s explanation as to constructive possession is too narrow.  I expect this decision to be appealed and am hopefully the Federal Circuit realizes that a letter sent to the VA administrators is also constructively before everyone at the VA.

Decision by Chief Judge Barltey and joined by Judges Falvey and Laurer. 

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Estevez: Shoulder Rotation Ratings Explained

Estevez v. McDonough, Case Number 20-8637, decided May 19, 2023 addressed shoulder rotation ratings under the pre-amendment version of Diagnostic Code 5201 (limitation of motion of the arm). 

The Board denied entitlement to a shoulder rating greater than 20% under then DC 5201 because ROM from 2010 and 2019 revealed limited abduction at 90 degrees.  “The Board acknowledged that Mr. Estevez's right shoulder disability caused additional functional loss due to pain and an inability to carry heavy objects, but it concluded that a higher evaluation was not warranted because, even factoring in that additional functional loss, his level of disability did not more nearly approximate arm motion limited to midway between the side and shoulder level.”  Id. at *4.

DC 5210 was amended effective February 2021 to clarify the terminology related to the shoulder.  The veteran argued the Board, in focusing solely on limitation of abduction, misinterpreted pre-amendment DC 5201 to exclude his limited shoulder internal rotation.  The Court noted “The veteran's argument is based on simple math. In his view, a 30% evaluation under preamendment DC 5201 required limitation midway between side and shoulder level, which he calculates as 45°, and a 20% evaluation required limitation at shoulder level, which he calculates as 90°. He reasons that, because the 2020 version of DC 5201 did not specify any particular type of limited arm motion, the October 2019 VA examiner's finding of internal rotation limited to 55° more nearly approximates the criteria for a 30% evaluation because 55° is numerically closer to 45° than to 90°.”  Id. at *7.

The Court noted that Section 4.71 “identifies different starting points for measuring shoulder flexion and abduction (from anatomical position as 0°) and for shoulder internal and external rotation (from the position of the "arm abducted to 90°, elbow flexed to 90° with the position of the forearm reflecting the midpoint 0° between internal and external rotation of the shoulder" as 0°). For shoulder flexion and abduction, Plate I depicts movements away from the side of the body in the sagittal and coronal planes, respectively, whereas for shoulder rotation, it depicts movements in the transverse plane around a different axis. 38 C.F.R. § 4.71, Plate I.  7 Plate I also specifies different numeric ranges of motion for shoulder flexion and abduction (0° to 180°) and internal and external rotation (0° to 90°). Id. These differences are fatal to Mr. Estevez's proposed interpretation because only the method for measuring shoulder flexion and abduction comports with the pre-amendment evaluation criteria.”  Id. at *9. 

The Court concluded: “In short, although pre-amendment DC 5201 did not specify that it applied only to certain types of arm motions, the language and structure of the DC indicates that it was, in fact, limited to shoulder flexion and abduction. Given that Mr. Estevez argues only that the Board committed reversible error in not awarding a higher right shoulder evaluation under that DC based on his limited shoulder internal rotation, and given that he did not argue that the Board committed any other error in evaluating that disability, the Court will affirm that portion of the Board decision.”  Id. at *12.

The Court also considered a knee and lichen planus issue that resulted in remand and are of lesser importance.

This veteran made a good argument for a higher shoulder rating that was simply not accepted by the Court based on the totality of the diagnostic code.

Decision by Chief Judge Bartley and joined by Judges Pietsch and Laurer.

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Encarnacion Continued: RO Decisions Implementing A Board Decision Cannot be Appealed and The Board Cannot Unilaterally Wrest Jurisdiction from the Court

Encarnacion v. McDonough, Case Number 21-1411, decided January 30, 2023 involved whether a RO decision implementing a Board decision could be appealed.  The VA asked for reconsideration by the Court, which was granted and a new decision (substantively similar to the first) was rendered on May 18, 2023.

Shortly after the veteran died, the surviving spouse filed for DIC and accrued benefits.  Ultimately the Board granted a 10% rating with a specified effective date for a right knee condition.  The RO then implemented the Board’s decision in another decision.  The surviving spouse filed an NOD as to the AOJ’s implementation with regard to the amount of the rating.  The VA then issued both a SOC and sent a letter rejecting the NOD.  The surviving spouse filed a Form 9 and the SOC was certified to the Board, which issued another decision as to the rating issue.  She appealed that decision to the Court and won a JMR because the Board erred in addressing the merits before determining whether the AOJ properly found it could not accept the NOD.

On remand, the Board determined it lacked jurisdiction because the spouse may not challenge the merits of a Board decision by expressing disagreement with the AOJ’s implementation of it.  The Board determined the law prohibits a NOD with respect to this type of implementation. 

The Court determined: “the pure implementation of a Board adjudication cannot be regarded as a decision "affect[ing] the provision of benefits" under section 511(a) and so cannot be appealed to the Board.”  Id. at *5.  It noted: “Here, the implementation of the Board decision by the AOJ was accompanied by no new findings of fact or law that could affect the award of disability benefits.  The Board had already granted service connection and resolved the proper rating and effective date. Even more importantly, the AOJ couldn't render new findings on factual or legal issues already determined by the Board because that would place the AOJ in the untenable position of reviewing the decision of a superior tribunal on those matters.  In sum, the AOJ's purely ministerial implementation of the Board's judgment was not a "decision" of the Secretary and thus could not be appealed through the filing of an NOD.”  Id. at *5-6.

The surviving spouse tried to argue the VA waived any objection to jurisdictional defect because the VA continued to adjudicate the claim by issuing a SOC and certifying to the Board.  But, the Court found without a decision under Section 511, there is simply nothing to review.  Id. at *6. 

However, the Court did find she was not without recourse.  It found the Board was required to determine whether her written disagreement with the decision (purported NOD) was a motion to reconsider the Board’s decision.  It also noted it was submitted within 120 days, which would abate the finality of the time to appeal to the Court.

On the motion to reconsider, the Secretary argued the Board had already considered the 2018 NOD as a request to reconsider and the Court had no jurisdiction over the 2018 decision.

“The Court grant[ed] reconsideration and agree[d], at least in one aspect, with the Secretary. We thus rescind the vacatur of the May 2018 Board decision. The Court declines, however, to alter its analysis regarding vacatur of the June 2020 Board decision or the Agency's duty to consider whether Ms. Encarnacion's July 2018 NOD constitutes a motion to reconsider the May 2018 Board decision. Once an issue has been properly presented to the Court for resolution, the Board may not wrest the issue from our consideration.”   Id. at *2.

While the case was pending before the Court, the Board tried to wrest jurisdiction from the Court by issuing a decision considering the July 2018 NOD as a request for reconsideration of the May 2018 Board decision.  The Secretary argued there is no need for the Court to order the Board to do something it has already done.  The Court rejected this argument, saying “But this misunderstands the situation: the Court's task on appeal was to determine whether the Board committed error in the June 2020 decision, and we determined that it did by failing to address the Ratliff issue. That was the appropriate time for the Board to consider the matter—not in October 2022, more than a year and a half after Ms. Encarnacion filed her Notice of Appeal here and more than two weeks after our order notified the parties that we were considering whether the July 2018 NOD should be construed as a motion for Board Chairman reconsideration.”  Id. at *7.

The Court explained and admonished the Secretary that,

“The Board's unilateral action ignored our admonition in Cerullo v. Derwinski, 1 Vet.App. 195, 197 (1991), that "[o]nce an appellate body takes jurisdiction over a claim, the lower tribunal may not consider the same issues." Not only is the concept of "concurrent or dual plenary jurisdiction . . . impermissible," we explained, but "allowance of dual jurisdiction raises the possibility that a court of appeals will expend extensive judicial time on a case only to have agency reconsideration nullify its efforts." Id. In this case, we ordered the Board on October 21 not to take action on any issue pending before the Court unless it was first granted leave to do so per the procedures spelled out in Cerullo. The Secretary declined to seek such leave on the Board's behalf. Given Cerullo and this Court's order, it should have been clear that the Board's belated attempt to dispose of the Ratliff issue while the Court was actively considering the matter was of no legal consequence. Regardless of what the Board purported, it could not construe the July 2018 NOD as a request for reconsideration of the May 2018 Board decision until the Court addressed the issue, over which we had taken jurisdiction. The Court having determined that Ratliff applied in these circumstances and that the June 2020 decision must be vacated, the Board is now permitted to construe the NOD as a motion for Board Chairman reconsideration.

This disposition clarifies not only juridical matters but practical ones. Action taken by the Secretary on an issue that is pending before this Court risks confusion as to governing procedures and deadlines. For example, the timing of a decision by the Chairman as to whether to grant or deny reconsideration directly impacts the timeframe within which a VA claimant can appeal a Board decision to this Court. In Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991), we established that, unless a protective Notice of Appeal has been filed in this Court, VA must "advise the claimant of the new 120-day judicial appeal period that commences, as to the underlying substantive [Board] decision, on the date of the mailing of the [Board's] notice of denial of the motion for reconsideration." Claimants, especially those who lack the assistance of capable counsel, could easily lose track of what they must do to pursue their cases properly when a claim or issue is being adjudicated simultaneously by two different tribunals.”

Id. at *8.

Judge Jaquith wrote a concurrence in which he focused on the tortured procedural history of this case and in particular how the VA seems to have not handled the substitution properly and without proper notice.  It is a well-reasoned discussion that sympathetically focuses on the veteran or surviving spouse.  He particularly called out the Secretary, saying “VA has flouted the authority of the Board and this Court, and our dissenting colleague says we are powerless to address the Agency's defiance. In my view, a contrary conclusion is dictated by our status and function as a court created to provide independent judicial review of decisions in a system founded on fair process.”  Id. at *9-10.

Judge Falvey wrote a dissent in part.  He agreed that the a RO decision simply implementing a Board decision could not be appealed, but disagreed with everything else.  He essentially argued that the remand simply added steps and time to the surviving spouse’s appeal. 

This is an odd case with a twisted procedural history that no doubt confused an older, unrepresented surviving spouse.  However, the Courts definition of a decision as one not requiring any further adjudication by the AOJ is a helpful clarification.  The Court’s willingness to directly say the Board should have considered the second NOD as a motion for reconsideration and then going a step further and saying the VA cannot unilaterally wrest control of the appeal from the Board by later addressing the motion is also very helpful and demonstrates that at least some of the judges are tired of the VA’s unceasing games.

Decision by Judge Toth.  Concurrence by J. Jaquith and dissent in part by J. Falvey.

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Cook: What Evidence is Considered by the Board

Cook v. McDonough, Case Number 20-6853, decided May 17, 2023 involves what evidence the Board should consider on appeal  Specifically, the case involved evidence submitted after an RO decision, but before the NOD was submitted. 

The veteran argued 38 USC 7113(c)(2)(A) plainly and unambiguously provides that the Board must consider all evidence associated with the VA claims file when the NOD is filed.  The Court noted the veteran is asking it to interpret the phrase “evidence submitted with the NOD” as including all evidence in the VA claims file when the NOD is filed.  The Court rejected such an interpretation.  Essentially it argued the plain meaning of the statute does not support such an interpretation.

The veteran also argued that the Board decision did not provide a general statement complying with Section 7104(d)(2).  Essentially, he argued he Board incorrectly stated that the evidence it did not consider was received after the 90th day following the NOD, and that the Board failed to inform the veteran that it did not consider evidence received before the NOD.

Next, the Court explained

“Congress understood that for the Board's reasons or bases to be adequate, the Board must "account for the evidence which it finds to be persuasive or unpersuasive" and its decision "must contain clear analysis and succinct but complete explanations." Id. at 57. Thus, to render an adequate statement of reasons or bases, the Board must consider evidence and explain its weighing of the probative value of evidence. By comparison, subsection 7104(d)(2)(A) requires something different: a general statement "reflecting whether evidence was not considered in making the decision because the evidence was

received at a time when not permitted under [38 U.S.C. § 7113]." 38 U.S.C. § 7104(d)(2)(A). Thus, to provide a general statement, the Board must consider whether any evidence in the record in the proceeding falls outside the "evidentiary record before the Board" under section 7113. Unlike subsection 7104(d)(1), no language in subsection 7104(d)(2) suggests that the Board must actually consider any evidence or explain the probative value of any evidence.”

Id. at *12-13.

It then explained:

“For a claimant to make an informed decision on whether and how to have VA consider any evidence not considered by the Board, the Board must accurately inform the claimant whether it did not consider evidence because it was received during a time not permitted by section 7113, and what options may be available for having VA consider that evidence. Congress obviously intended to require the Board to include, in its decision, a general statement that accurately informs the claimant of that information, because a general statement inaccurately informing the claimant of that information would render subsection 7104(d)(2) ineffective.”

Id. at *13-14.

As to this case, “[t]he parties do not dispute that the Board did not consider evidence submitted during the time period between the AOJ decision and the NOD, and Board erred because it provided, in its decision, a misleadingly inaccurate general statement informing Mr. Cook that it did not consider only evidence received after the 90 days following NOD.  We also conclude that the Board's error prejudiced Mr. Cook.”

Id. at *15.

Judge Jaquith wrote a concurrence outlining notice deficiencies in the entire process.  He wrote:

“Notice and a meaningful opportunity to respond are key requirements of due process and the fair process principles at the heart of our system. The notice the AOJ and the Board provided here was inadequate, first giving the veteran no reason to think that the early evidence he submitted in response to the AOJ's notice would not be considered unless it was resubmitted and then giving him an inaccurate and misleading general statement regarding the evidence the Board had not considered. VA's handling of this case did not measure up to the expectation of Congress.”

Id. at *21.

This decision illustrates the insanity of a system that allows the Board to ignore evidence because it was not submitted WITH the NOD and was instead submitted prior to the NOD.  This is a major failing of the new legislation that only injects more delay into a VA process already filled with delay.

Decision by Judge Pietsch and Laurer with concurrence by Judge Jaquith. 

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Wiker: Lack of Notice Means a Decision Remains Open

Wiker v. McDonough, Case Number 21-5454, decided May12, 2023 involves a VA denial where the notice did not state the claim was denied.

This was an appeal from an earlier effective date denial for left eye blindness.  The veteran argued the Board erred in finding the VA fulfilled its duty to notify the veteran of a 1965 decision denying service connection for cataracts and thus the decision was not final.  The Court held

“that VA failed to give Mr. Wiker proper notice because the January 1965 initial notice didn't tell him that VA denied service connection for cataracts. As for the actual knowledge exception, although we hold that it can apply in this context, we find that the evidence relied on by the Board fails to show that Mr. Wiker knew that he could appeal VA's October 1965 corrective notice or that he knew his deadline to file such an appeal. And as for the reasonable person exception, even if we assume that it could apply here, the differences between VA's initial notice and the corrective notice would not let a reasonable person know that the denial could be appealed or what the time limit was for doing so. Thus, we hold that Mr. Wiker's appeal never became final, reverse the Board's contrary determinations, and remand this claim for the Board to consider the correct effective date based on the 1964 claim.”

Id. at *2.

The veteran was discharged for bilateral cataracts and immediately sought service connection, which was denied because the RO found it was a congenital defect.  However, the VA never sent the decision to the veteran.

However, the VA did send a letter saying service connection was granted but rated noncompensable.  Several months later, the VA sent a letter saying the prior letter was error and service connection had been denied previously.  That letter stated nothing about appellate rights.

The Board admitted the first letter was confusing, but found it was cured by the second letter.  After a court remand, the Board again found the first letter was not sent to the veteran, but cured by either the second letter or the veteran’s actual knowledge of the denial and appellate rights.

The Court began by noting a claim remains open until finally adjudicated, but final adjudication requires proper notification of the decision.  Id. at *4.  Part of the notice required in 1965 was (1) the reason for the decision, (2) the claimant's right to appeal by filing an NOD, and (3) the time limit within which an NOD could be filed.  The Court found the first letter failed by not stating he had been denied service connection and why.  Id. at *6.

The Court considered whether the veteran had actual knowledge of the denial, but found the evidence did not show he had actual knowledge prior to the time to appeal elapsing. 

This is an interesting decision showing that it is not impossible to find apparently final decisions that in fact remain unadjudicated.

Decision by Judge Falvey and joined by Judges Allen and Jaquith. 

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