Carter v. McDonald
2015 U.S. App. LEXIS 12521
| Fed. Cir. | 2015Background
- Carter sought to reopen a VA disability claim denied in 1990; VA reopened in 2006 but denied on merits, with Board affirmed in 2009.
- During remand, Carter changed counsel and requested his complete claim file in 2010.
- A joint motion remanded in July 2010 directing the Board to allow additional evidence; the Board issued a 90-day letter August 6, 2010, but notice was sent only to Carter’s former representative.
- Carter’s new counsel never received the 90-day letter within 90 days, and Carter did not submit new evidence on the remand deadline as a result.
- In February 2011 the Board denied again; the new counsel did not receive the decision until December 2011; the Veterans Court affirmed, finding the notice defect cured.
- Carter appeals under 38 U.S.C. § 7292(a), arguing the notice defect was not cured and the Board erred by not considering new evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the notice defect cured as a matter of law? | Carter | Government | Not cured; vacate remand |
| Does 38 C.F.R. § 1.525(d) require timely notice to counsel before the deadline? | Carter | Government | Yes; requires timely notice |
| Did Kutscherousky or Matthews negate the unambiguous 90-day deadline? | Carter | Government | No controlling override; not binding to cure |
| May the Board consider late evidence when notice is defective? | Carter | Government | No; not permitted under governing law in this context |
| Should this matter be remanded for new evidentiary submission on remand? | Carter | Government | Yes; vacate and remand with instructions |
Key Cases Cited
- Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board must consider merits of new theory if raised on remand)
- Shinseki v. Sanders, 556 U.S. 396 (Sup. Ct. 2009) (harmless-error review standard in agency proceedings)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (Supreme Court 1950) (notice must be reasonably calculated to apprise interested parties)
- Matthews v. Principi, 19 Vet. App. 23 (Vet. App. 2005) (specific contexts for restarting notice clocks; limited applicability)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App. 1999) (remand authority and notice implications for postremand submission)