Significant Judicial Precedent and Its Effect on the Board of Veterans Appeals
Informal Claims: In Ingram v. Nicholson, 21 Vet. App. 232 (2007) (Ingram II), the CAVC reconsidered its earlier decision in Ingram v. Nicholson, 20 Vet. App. 156 (2006) (Ingram I), in light of the Federal Circuit's decision in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006).
Previously, in Ingram I, the CAVC had held that the Board erred by imposing a strict pleading requirement and by failing to take a sympathetic reading of the pro se claimant's filings. The CAVC held that a reasonably raised claim remains 'pending' until there is an explicit adjudication of the claim or an explicit adjudication of a subsequent claim for the same disability.
In Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), however, the Federal Circuit had held that where the veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. The Federal Circuit rejected the theory that an implied claim remains pending and unadjudicated.
Upon reconsideration sought by the Secretary in Ingram II, the CAVC rejected the Secretary's argument that Deshotel controlled and found that, if strictly applied, the general holding in Deshotel would produce nonsensical results. The CAVC reasoned that if a claim could be denied sub silentio by failing to be addressed by VA when deciding other contemporaneous claims, the veteran would have no reason to know that the claim had been decided. As such, the CAVC interpreted Deshotel to mean that an RO decision may only constitute an adjudication of a claim where the RO decision addresses the claim 'in a manner sufficient for a claimant to deduce that the claim was adjudicated. Consequently, the CAVC held that a reasonably raised claim remains pending 'until there is either recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability.
Haas v. Nicholson, 20 Vet. App. 207 (2006): The CAVC reversed a Board decision that denied claims for service connection for various disabilities as a result of exposure to herbicides. The Board determined that, although the appellant had served in the waters off the shores of the Republic of Vietnam, such service did not warrant application of the presumption of herbicide exposure because the appellant never set foot on land in that country. The CAVC reversed the Board's decision, holding that a VA Adjudication Procedure Manual provision created a presumption of herbicide exposure based on receipt of the Vietnam Service Medal for purposes of service connection for diseases associated with herbicide exposure. The CAVC also found that neither the statute nor the regulation governing herbicide exposure claims precludes application of the presumption of herbicide exposure to persons who served aboard ship in close proximity to the Republic of Vietnam. For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. ' 3.307(a)(6)(iii), the CAVC held that 'service in the Republic of Vietnam' will, in the absence of contradictory evidence, be presumed based upon the veteran's receipt of a Vietnam Service Medal, without any additional proof required that a veteran who served in waters offshore of the Republic of Vietnam actually set foot on land. Since there were potentially a large number of cases on appeal that might be affected by Haas while an appeal is being sought to the Federal Circuit, the Secretary of Veterans Affairs issued a memorandum on September 21, 2006, directing the Board to stay action on and refrain from remanding all claims for service connection based on exposure to herbicides in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shores of Vietnam. The purpose of this stay action is to avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on judicial precedent that may ultimately be overturned on appeal. Oral argument in Haas was held before the Federal Circuit on November 7, 2007.
Veterans Claims Assistance Act of 2000 (VCAA):
Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Mayfield IV): The appellant filed a claim for Dependency and Indemnity Compensation (DIC), claiming that her husband's death was related to his service in the military. In a May 2002 decision the Board denied DIC. With respect to the VCAA, the Board found that the duty to notify had been satisfied by the combined contents of three documents that had been sent to the appellant, including a December 1999 rating decision, a June 2000 Statement of the Case (SOC), and a January 2002 SSOC. Although a notice letter had been sent by the regional office in March 2001, the Board made no reference to this letter.
In Mayfield I (Mayfield v. Nicholson, 19 Vet. App. 103 (2005)), the CAVC affirmed the Board's May 2002 decision by looking at the March 2001 letter (which the Board had not discussed in its May 2002 decision) and concluding that VA had fulfilled its obligations under the statutory notice requirements by sending this letter. In Mayfield II (Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006)), the Federal Circuit reversed and remanded, noting that the CAVC's decision in Mayfield I violated the longstanding principle of administrative law that a court reviewing an agency decision generally may not sustain the agency's ruling on a ground different from that invoked by the agency (the 'Chenery' doctrine). By sustaining the Board's determination that the notification requirement had been satisfied, but basing its ruling on an entirely different ground i.e., the adequacy of the March 2001 notice letter versus the cobbled together notice relied upon by the Board'the court violated these principles. The Federal Circuit remanded the case for a determination by the Board in the first instance whether the March 2001 letter satisfied the notice requirements of the VCAA. In December 2006 the Board issued another decision concluding that the March 2001 letter fulfilled VA's notice obligations under the VCAA. In Mayfield III (Mayfield v. Nicholson, 20 Vet. App. 537 (2006)) the CAVC affirmed the Board's decision noting that: (1) the March 2001 letter provided adequate notice under the VCAA; (2) the January 2002 SSOC was a subsequent decision on her case; and (3) harmless error was a basis for finding that the notice was adequate.
On appeal for a second time the Federal Circuit affirmed the decision in Mayfield III. The Federal Circuit found, in pertinent part, in Mayfield IV that because the March 2001 letter served as adequate notice under the VCAA, and the January 2002 SSOC served to readjudicate the appellant's claim, there was no deficiency in notice and a harmless error analysis was not necessary.
Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), and
Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007):
Both of these decisions addressed the issue of application of the prejudicial error rule in the context of the VCAA, including who has the burden of proving before the CAVC that any error committed by VA in providing notice of the information and evidence necessary to substantiate a claim for benefits under 38 U.S.C. 5103(a) was prejudicial. In Sanders, the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. 5103(a) and 38 C.F.R. 3.159(b)(1) is presumed prejudicial, and that once an error is identified by the CAVC as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. ﾠ
Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, or that a reasonable person could be expected to understand from the notice what was needed, or that benefits could not have been awarded as a matter of law.
In Simmons, the Federal Circuit, in applying the holdings in the concurrently issued decision in Sanders, affirmed the CAVC holding that an error by VA in providing notice of the information and evidence necessary to substantiate a claim under 38 U.S.C. 5103(a) is presumptively prejudicial, and that in such a case the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant.
Hupp v. Nicholson, 20 Vet. App. 1 (2006):
In this significant case, the CAVC addressed VA's section 5103(a) notice obligations in the context of a claim for DIC benefits. In the context of DIC claims, the CAVC held that section 5103(a) notice must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In addition, the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. While VA is not required to assess the weight, sufficiency, credibility, or probative value of any assertion made in the claimant's application for benefits, the CAVC noted that VCAA notice letters for DIC claims should be 'tailored,' and must respond to the particulars of the application submitted.
More references you may find useful.
-- Title 38 Code of Federal Regulations C.F.R.
- - 38 CFR 4.1 Essentials of evaluative rating
-- Schedule for Rating Disabilities 38 CFR 4
-- Code of Federal Regulations Title 38 Index Parts 0 -17
-- Code of Federal Regulations Title 38 Index Parts 18 - end
-- Schedule For Rating Disabilities 38CFR4 Adjudication 38CFR3
-- U.S.C. United States Code
- VA M-21 Compensation and Pension Manual
- Get Smart - Law Reference Page
- Notice of Disagreement (NOD) SAMPLE
- Motion for Reconsideration, Claim of Clear and Unmistakable Error Example
- Writ of Mandamus Example
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Precedent
