*1
untimely
otherwise
upon eq-
based
Donaldson,
Jimmie C.
Veterans Service
uitable
If
tolling.
the federal courts have Officer of
Alabama,
the State of
had rec-
recognized
not
any protected interest that
ommended that appellant contact declar-
requires equitable tolling of the time for
ant for possible representation.”); see also
independent judicial review, then it
very
Covey, 351
U.S. at
decision discussed his diagnosed various (see
mental illnesses at length Larry D.
Barrett, 96-18258A, BVA (Aug.
2002))), the appellant has proffered suggesting that VA knew YOUNG, Alfred R. Appellant, appellant’s condition rendered him unable
to understand
provided.
the notice
Edwards,
rights. See Declaration of Lipp Mark R. (“Appellant
man advised declarant *2 GREENE, Judge,
Before Chief LANCE, Judges. MOORMAN and MOORMAN, Judge: *3 appebant, The veteran Alfred R. Young, appeals through August counsel 2004, decision of the Board of Veterans’ (Board) that, aba, Appeals inter denied disabihty rating greater than for his 70% post-traumatic service-connected stress (PTSD). 9, 2007, May disorder On the in single-judge Court issued a decision dismissing matter appellant’s appeal the his claim for entitlement disability total based on individual unem- (TDIU) ployabihty affirming the 17, 2004, August On Board’s decision. 35(a) 29, 2007, May pursuant Rule (b) of the Court’s Rules of Practice and Procedure, the filed a motion for 9, 2007, May reconsideration of the deci- sion, or, alternative, panel for a decision. See U.S. R. 35. Subse- quently, May the Court withdrew its 2007, decision. ap- decision on August
The 2004 Board disabihty rating for peal denied PTSD appel- excess of 70% and remanded lant’s PTSD claim as it related to the date; of an effective essential- assignment appellant’s ly, the Board bifurcated the (R.) at 15. While PTSD Record Au- appeal of the Board’s (Docket 04-2310) No. gust 2004 decision Court, pending was and after before August the remand ordered completed, Board decision was the Board decision with re- April issued gard assigned to the effective dates disability ratings appel- for the various Cameron, Montgomery, Ala- John PTSD. The lant’s service-connected bama, appebant. on the briefs 6, 2006, Board appealed lant 06-1546). (Docket Thompson, Acting H. General No. Conse- John Counsel; appeals Campbeb, quently, R. Randab Assistant has two Bernal, Counsel; stemming and Debra L. all from pending General before Court D.C., on the for Board decisions on same Washington, were brief two different claim for benefits PTSD. appellee. the Court remanded ordered and October the Court On parties’ joint pursuant his claims appeals, of these consolidation 204-19, 221. R. at motion for remand. disability rating) (regarding No. 04-2810 (regarding effec- 06-1546 No. 2001, the RO increased date).1 appeals were consolidated tive disability rating the en banc Court then called before 50%, July R. at 411. effective May Subsequently, decision. Disagree- a Notice of filed the matter to a returned the en banc Court (NOD) counsel, stating that through ment Court; has reached panel panel of the ... RO’s “disagree[d] [the deci- following decision. in- his claim for an granted sion which *4 for his service-connected rating
creased I. FACTS as- R. at 414-16. He PTSD condition.” effective date should have serted 1995, appellant filed a In December 7, 1995, that the rat- been December connection for entitlement to service higher. R. ing assigned should have been PTSD, Montgomery, Ala- for which the 2003, In March the RO awarded (RO) bama, regional office awarded VA disability appellant a 70% PTSD rat- 1996, disability a 30% September assigning August 2001. R. at 539. ing, effective 17,1997, 24-27, R. 53. On June rating. at appeal as appellant perfected another vocational received a from VA VA R. at rating to the and effective date. (VRS) stating his specialist rehabilitation He asserted that he was “entitled 563-66. ability to appellant’s] “impression [the for his service-connect- rating to a 100% or favorable or maintain effective establish an ed PTSD with effective date Decem- considerably people with relationships 1995, 7, undisputed ber based on the medi- psychoneurotic symptoms His impaired. cal in the record.” R. at 563. impairment.” considerable industrial cause 30, 1997, received a R. at 60. On June VA 17, 2004, August On the Board issued stating that appellant document from the denying the first decision here on re-open to service con- “needfed] [his] appellant’s claim for entitlement to a nected claim for an increase [his] disability rating greater than 70% for his appellant also rating.” R. at 62. The R. PTSD. at 1-18. The Board remanded information on how to file a requested portion appellant’s the effective date of the to Id. claim for entitlement TDIU. VA claim and instructed the RO to issue a treated this document as new claim for Supplemental Statement the Case (SSOC) disability rating. an In Decem- addressing increased whether the (1) prior ber the RO continued the 30% dis- was entitled to an effective date 30, 1997, disability to for his 50% ability rating PTSD and June (2) PTSD, rating. rating prior R. for an effective date denied entitlement TDIU 9, 2001, appellant perfected an ap- August at 91-96. The for his 70% (3) PTSD, August and in for an effective date peal 9, 2001, disability rating greater prior August for TDIU. R. at Board denied timely appealed than for his PTSD and denied entitle- 17. The 30% R. rating. August ment to a TDIU at 193- Board’s 2004 decision. After com- Court, pleting development appellant appealed 202. The ordered designated 1. A record has been in both the the Court’s decision refer to the record in appeals. 2004 and 2006 As the two records Docket Number 04-2310 unless otherwise duplicative, are all record cites contained in noted. an effective remand, failing assign him April erred August Board’s on the date of his denying date based a decision Board issued 30, 1997, 1995 claim for benefits. December (1) prior to June effective date (2) PTSD, Alternatively, appel- Br. at 13-15. disability rating for for 50% 17, 1997, the June VRS argues lant an effective PTSD, and material evidence that report was new disability rating for a 70% for conjunction adjudicated in never prior August an effective date in viola- TDIU, September 1996 RO entitlement to service 3.156(b). abuse, Appellant’s tion of 38 C.F.R. claimed for substance connection Br.) R.(06) at Reply (App. Reply 1-44. The 2004 Brief PTSD. secondary to timely fled Board’s 2006 decision. Secretary appel- asserts that claim has two claim streams: The lant’s
II. ANALYSIS first from the December stems benefits, which the Secre- 1995 claim Finality A. tary argues final when the became *5 1996 RO Decision 1996 September lant failed to 1. the Parties Contentions of Secretary The contends that RO decision. of the June 1997 documents that that his December neither appellant argues construed submitted can be pending remains 1995 claim benefits (Sec’y Secretary’s an 2004 Brief 1996 RO decision as NOD. September because Br.) Al- at 11-12. The second on his claim. 04 was not a final decision stream, Secretary contends is which the involves an extended and though this case from the June currently appeal, on stems history, par- complicated procedural construed as finality of the document regarding the dispute ties’ Secretary rating an claim. The centers on increased September 1996 RO decision 1997, argues that because the June of the two documents re- treatment YA’s 30,1997, not characterized as an 17,1997, could be on and June document ceived June disagreement it neither stated one-year appeal period of NOD-as each within the with, review any appellate nor asked for September 1996 RO decision. 30, 1997, of, it could any determination-and because that the June appellant asserts reopen, it could constitute a claim to Septem- as to the document was NOD as an increased only 2004 be construed Appellant’s 1996 RO decision. ber Br.) (Sec’y 8-9; Secretary’s 2006 Brief 06 (App. Appellant’s Brief 04 at Br.) Moreover, Br.) Secretary 19-20. at 9-12. He (App. Brief 06 2006 that the June VRS never issued a asserts contends that because VA (SOC) finality of the response could not have abated Statement Case 30, 1997, NOD, 1996 RO decision because September to his June 7105(c) final, § 20.304 § and 38 C.F.R. and U.S.C. 1996 RO decision never became Sec’y tolling. specifically prohibit such claim for benefits was his December 1995 will discuss each its 06 Br. at 18. The Court when the Board issued pending still VA’s treatment question, document in and 2006 decisions. August documents, parties’ positions those He thus contends App. 04 Br. at 20. documents, impact possible their those and construing that because VA erred September 1996 RO finality of the as a new claim on the submission June also decision. disability rating, VA for an increased year prior Applicable Law date back as much as one application to the date of the formal Generally, an NOD must be filed “factually increase if it is ascertainable of the un year from
within one an increase in had occurred” decision, if no NOD is derlying RO period. See within 38 U.S.C. one-year appeal period fol filed within the 5110(b)(2); 3.400(o)(2) § § 38 C.F.R. will lowing the RO the decision 7105(b)(1), §§ become final. See 38 U.S.C. (c). However, § provides 38 C.F.R. 3.156 claim, deciding Before potential exception general to this rule. required to all relevant Board is consider 3.156(b), VA must consider Pursuant to consider record and material evidence received any new and “potentially appli discuss its decision all one-year appeal period follow during the provisions regulation. of law and cable” having filed in ing an RO decision “as been Derwinski, Schafrath pend claim which was connection with the (1991); 7104(a); see 38 U.S.C. Weav appeal period.” beginning at the Principi, er v. 3.156(b) (2008). 38 C.F.R. When VA order). addition, (per curiam the Board and material evidence fails to consider new in its must include decision written state one-year appeal peri within the submitted ment the reasons or bases for its find pursuant od and that evi conclusions, ings adequate to enable dence establishes entitlement the bene precise to understand the ba underlying fit RO decision does sought, the sis for the Board’s decision as well as to West, final. See Muehl v. become facilitate review in this Court. *6 (1999). 159, 161-62 Vet.App. 7104(d)(1); Brown, § Allday v. 7 U.S.C. de novo whether a The Court reviews (1995); 517, v. Der Gilbert certain constitutes an NOD. document winski, 49, (1990). 1 Vet.App. 56-57 To 7261(a)(1); § See 38 U.S.C. Palmer v. Ni- comply requirement, with this the Board (2007). cholson, 434, 21 Vet.App. analyze credibility must probative defines an NOD as written communi- “[a] value of the account for the evi rep- from a claimant or or cation his her it persuasive unpersua dence that finds expressing resentative dissatisfaction or sive, rejec the reasons for its adjudicative an disagreement with deter- any tion material evidence favorable to by agency original juris- mination Brown, the claimant. v. See Caluza diction and a desire to contest the result.” 498, (1995), curiam, per aff'd § It must ex- 38 C.F.R. 20.201 be 604, 1996 (Fed.Cir.1996) 78 F.3d WL 56489 pressed “in terms which can reason- be (table); Gilbert, supra. ably disagreement construed as with that appellate determination and a desire for Application Law to Fact determinations review” specific and “the a. The June Document disagrees with which the claimant must be identified.” Id. Because it is uncontested that the any September effective date of award “shall be yet 1996 RO decision was not found, fixed in with final accordance the facts when VA received the June document, but shall not be earlier than the date of there also no dispute that the receipt application therefor.” 38 U.S.C. June document could consti 5110(a). However, § in- reopen any previously a claim for tute a claim to de compensation, creased the effective Jennings Mansfield, nied (Fed.Cir.2007) Reply Br. at 1. con- App. sion.” He 1367-68 (“[A] subject final and tends that in June at the time he claim becomes reopen only period report, after the his motion submitted the VRS December 3.160(e) run.”); § appeal has 38 C.F.R. pending 1995 claim for benefits was a (2008) (a reopen claim to finally adjudicated, claim that had not been thus, received “after final disallowance benefits in “ignoring]” the Board erred Muehl, claim”); see also su- earlier application of 38 C.F.R. pra (holding that the Board erred deter- exception which he asserts “created an during the mining that evidence submitted finality rating of a VA decision where period reopen was a claim to ... there is submitted the veteran new claim). April In its previously disallowed one-year appeal period evidence within the decision, the Board found after the decision is issued.” June document that Reply Br. at 5. requisite submitted did not contain the In its the Board considered an
information for it to be noted that “contested the (06) thus con- NOD. R. at 29. The Board finality September of’ the 1996 RO deci- cluded that because the did sion, argument and it considered his NOD, deci- file an 1996 RO prevent- “had the effect of the VRS (06) was final. R. at 30. sion finality of the June 1996 RO deci- ing the review, novo holds Upon de Court However, R. the Board sion.” 30, 1997, document does not that the June provides that “38 20.304 found C.F.R. an NOD. See 38 U.S.C. constitute filing of additional evidence after 7261(a)(1); Palmer, supra; 38 C.F.R. receipt of notice of an adverse determina- reasonably § 20.201. The document cannot limit for tion does not extend the time express disagreement construed to be from that initiating determina- or reflect an intent to particular Id.; see 38 C.F.R. 20.340 tion.” appellate Regarding seek review. (with filing of addi- exceptions, certain “the claim, only the the document states receipt of notice of an tional evidence after “re-open ser- *7 appellant’s request [his] not extend the adverse determination does claim for an increase vice connected limit initiating completing or time rating” notes that his PTSD [his] determination”). from that appeal that a vocation- “counselor has determined September Board thus concluded is not program al rehabilitation feasible.” was final. R. 1996 RO decision not mention R. at 62. The document does consid- concluding, In so the Board did not decision, September 1996 RO it does 3.156(b). § At discuss 38 C.F.R. er and express disagreement with the report, 38 the time received the VRS VA therein, assigned nor does the document § provided: C.F.R. request any review of the (b) received New and material evidence disability rating. PTSD See 38 C.F.R. of the prior expiration to the § 20.201. appellate to the period, prior Report b. The VRS (includ- timely appeal if a has been filed to an that his evidence received appellant argues sub agency and referred to report in June late decision mission of the VRS by the Board of original jurisdiction of one-year appeal period within the after the consideration Appeals without 1996 RO “tolled the Veterans September in accordance with the in that decision appeal period deci- 20.1304(b)(1) one-year period preceding § of this “within the of provisions having as receipt will be considered date of of a claim for increased chapter), in connection with the claim filed compensation,” specifi- been the Board did beginning at the of pending was which cally determine whether appeal period. severity one-year increased in period prior to his submission VRE 3.156(b) (1997); § see 66 Fed. 38 C.F.R. 2001) (amendments R. 12. The Board’s report. 45,620 (Aug. Reg. inadequate 2006 decision thus is to facili- claim for benefits apply 3.156 Allday, tate the Court’s review. See su- on or after received VA 2001). pra. the Board re- The record before evidence, filed vealed that the Contrary finding to the Board’s report, prior of the form the VRS assertion, § Secretary’s and the 20.304 one-year appeal period expiration of the follow its cannot excuse a VA failure to September 1996 RO decision. following the Ruiz, procedures. own v. See Morton The Board’s failure to discuss U.S. 94 S.Ct. 39 L.Ed.2d which, record, potentially appli- is a (1974) (“Where rights of individu requires re- regulatory provision, cable affected, upon agen als are it incumbent Schafrath, both mand. See Weaver procedures.”). cies to follow their own supra. Rather, the Court’s and U.S. Court report, was Upon receipt VRS VA jurispru Appeals the Federal Circuit’s to evaluate it to determine wheth required dence make clear that failure to fol VA’s er it of “new and materi met definition procedures low its own result al evidence” set forth in 38 C.F.R. 3.156. finality underlying lack RO or 3.156(a) (1997). If See 38 C.F.R. Peake, Board decision at issue. See v.AG new found the VRS be and mate (Fed.Cir.2008) (hold rial have it VA should considered notify ing, as result VA’sfailure to having filed in connection with the been right appeal, of his the under 1995 claim. appellant’s December final”); lying RO decision “never became
Jennings, (“Any at 1368 interim F.3d Nicholson, Ingram finality submissions must be consid before (2007) (“[T]ime pertaining limitations by ... part ered VA as right veteran’s an adverse deci Muehl, (evi claim.”); at 162 begin sion to run do not until the veteran during one-year appeal dence received proper has received notice that his claim period following an RO decision “should denied.”); Brown, Hauck v. 6 Vet. conjunction have been considered in *8 order); (per 519 curiam claim”). If, hand, original the on the other Principi, see also Cook v. properly the submission was (Fed.Cir.2002) (en banc) (VA’s 1341 failure construed as a claim for an increased dis receipt to issue an after of an SOC NOD ability rating, he was to entitled have VA prevents underlying the RO decision from adjudicate “factually whether it was ascer becoming final because such a failure tainable that an increase in [his] extinguishing the effect of the claim “ha[s] one-year period prior had occurred” in the decision”); right ant’s an adverse receipt to VA’s of his claim. 38 C.F.R. (“The Palmer, 3.400(o)(2). 21 Vet.App. filing at 438 This the Board also failed appellant] the NOD entitled receive Although [the to do. the Board noted that the an Because the RO provided law for an effective date for the SOC.... failed SOC, disability rating award of an increased provide appellant] with an [the (VA C.J., obligated to read concurring) “is appeal to the to file a formal unable light RO claim in the most favor [underlying] decision a veteran’s and the Derwinski, veteran”). final.”); Kuo v. thus able to the The Court never became (1992) (VA’s an mailing necessary Vet.App. holds that remand is 3.156(b) in the care of his veteran SOC to the apply and make Board to meet “is not sufficient representative determination whether the VRS threshold the Secre imposed upon requirements the report was new and material evidence “can regulations,” and VA tary by his own severity PTSD. See response a[n for lack of not close a case Muehl, (holding that Vet.App. at 161 appellant ... received unless the SOC] within the where received evidence VA [SOC]”). an RO one-year appeal period following (cid:127)decision, determining the Board erred 3.156(b) a vet is intended to be Section a claim to constituted that that allows for eran-friendly provision discussing applica without first reopen date of the date of an effective assignment 3.156(b)). §of If the Board deter require tion claim when certain 28,778 and (May report was new Fed.Reg. mines that VRS ments are met. 2007) it, §§ that and when VA received VA (explaining material evidence claimant-friendly having effective “provide report 3.400 must consider VRS on evidence appel rule for awards based with the filed in connection been is on received while a claim readjudi- December 1995 lant’s To expires”). appeal period before report. the VRS considering his claim cate Secretary’s position accept Muehl, Jennings, supra; See Sep correctly determined If the Board determines was final would tember 1996 RO decision material was not new and report VRS claimant- ignore to allow VA to be Board then must determine also create friendly provision. It would appropriately whether VRS VA, by considering possibility a claim for an increased disabil considered one-year during the evidence submitted it, adjudicate including ity rating and so following the RO decision appeal period ap whether the making a determination waiting for the RO decision simply severity increased pellant’s PTSD final, appellant of the deprived the become filing to his his claim one-year period prior with his date associated earlier effective 38 U.S.C. increase. See anti This would be December 1995 claim. 3.400(o)(2) 5110(b)(2); 38 C.F.R. nonadversarial, claimant- thetical must ade The Board See friendly proceedings. nature of VA reasons or bases statement of the quate Nicholson, 487 F.3d Sanders Caluza, All for its determinations. (Fed.Cir.2007) (noting uniquely pro- “VA’s Gilbert, day, supra. all system”); Vazquez- benefits claimant Rating Disability B. PTSD Peake, Flores v. Date and Effective (“To receive the ben that claimants ensure revised Effective November entitled, they Congress are efits to which evaluating psy- regulatory criteria its nonadver- uniquely pro-claimant, created a *9 disorders, 61 including PTSD. See chiatric adjudicatory system sarial VA-benefits 1996) (final (Oct. 8, 52,695 rule Fed.Reg. important procedural several that contains evaluating for dis- schedule amending VA’s envi pro-claimant that steps promote to disorders). Nicholson, to mental pertaining ronment.”); abilities see also Voracek entitled to (Fed.Cir.2005) (Michel, that he is appellant The asserts 1299, 1305 470 rating, may effective Decem- that a schedular evaluation be inade disability
a 100% argument PTSD; that quate compensate ber 1995. He reiterates to him for his claim for benefits re- and, 1995 his December the Board must address the matter thus, argues pending, mained West, Colayong v. 12 on remand. See ap- have considered the should the Board (1999) (“[W]here 536-37 pre-1996 version of the plication of the veteran has asserted that a schedular rat (DCs) codes for rat- applicable diagnostic ing inadequate, specifi is the Board must 11-12; PTSD.App. 04 Br. at 06 cally adjudicate the issue of whether an Br. at 15-27. extraschedular-rating analysis appropri August
1. Board Decision and, if enough ate there is such 2004- the Board must direct the matter be Board decision as August The 2004 consideration.”) referred ... for disability of appellant’s level sessed forward and found “no August from April 2. 2006 Board Decision assignment for of a schedular evalua basis The decision ad- tion than for PTSD.” R. at greater 70[%] appellant’s disability dressed level disability prior 14. level of appellant’s prior August 2001 and determined in the next August discussed appellant was not entitled either Because the Board section below. found disability rating prior 50% to June 1997 or appellant’s that the claim stemmed from disability rating prior August 70% his June claim for an increased Secretary 2001. R. at 17-44. The rating, applied appellant’s it determinations, reaching asserts that in its applicable reg the amended version of the adequately explain the Board did not its ulatory 11; criteria and DCs. R. at see rejection of medical evidence that tended 4.130, 38 C.F.R. DCs unemploya- to show that the remanding Because the Court is the issue beginning August Sec’y ble appropriate treatment of the VRS Secretary Br. at 13-16. The thus con- report, which lead VA consider the disability cedes that remand of the issue of appellant’s level amendments, regulatory appellant’s disability rating the Court will is re- proper also remand the issue of the dis quired to allow the Board to ability rating for the PTSD. sufficient statement of the reasons or bas- ap The Court need not now address the review, Upon es for its decision. pellant’s argument that the Board erred in necessary Court holds that remand is “implicitly denying” his claim for an ex- analyze the Board to credibility disability rating. traschedular Br. App. 04 probative regarding value of the evidence 21-25; Principi, see Best v. level of and to (2001) (“A pre narrow decision provide adequate reasons or bases its opportunity serves to rejection material evidence favor- argue those claimed errors before the to the claimant. able See Caluza and Gil- and, course, readjudication, Board at bert, supra. both appeal, before this Court in an should the him.”). against Board rule To the extent C. TDIU that the Board was not on notice at the appellant argues that he is entitled time it issued its Board is now on notice December effective date for his asserted, grant has addition to his entitlement TDIU based the medical evi- disability rating, to an increased schedular dence of record and that the Board erred *10 medical copy of all complete “a questing at 15-27. 06 Br. so find. failing to exam- records, pension] [compensation remanding the issues the Court Because developments and other reports ination of the VRS treatment appropriate letters) (and [the added to disability engagement rat all appropriate and the report Board’s after the prior to Au claims file appellant’s appellant’s] PTSD for the Supple- Secretary 17, 2004, the Remand order.” 9, 2001, August and because gust (06) a provide at 28. On No- failed to (Suppl.) Board R. that the mental concedes 2005, or bases counsel appellant’s of its reasons the statement vember sufficient appellant’s the such regarding requested had that he findings its notified VA the period, 10, 2005, during this and as of February of on level documents appellant’s the not re- remand will also of the letter “ha[d] Court the date of grant entitled documents.” requested that he the claim of ceived Gurley (06) August appellant’s 2001. 44. The Suppl. TDIU R. Nicholson, 575-76 pro- that VA again requested counsel thus on the Court (“[A]ny above-requested decision copy of the vide him a 12, 2006, be rendered could the January TDIU entitlement Id. On documents. adjudication below that by an stat- VA a letter meaningless counsel sent appellant’s that, in schedular higher ing: awards for an requirements
turn, satisfy the 10, 2005[,] and on Novem- February On C.F.R. under 38 TDIU of schedular award your requested from ber we 4.16(a).”). Young’s copy of Mr. complete office a D. Substance Abuse records, pen- [compensation and medical other de- reports and examination sion] decision, the Board August In its to the were added which velopments for service the remanded Board’s after the file claims veteran’s as second- substance abuse connection Order. Remand August for YA ary to his service-connected as- examination that provide medical of claimed sub- etiology sessed date, have not received we As this provided R. at 17. VA abuse. stance documents]. requested copy [the in November examination that VA now asserts ame ... please mail you Would copy of that exami- him a failed medical Young’s Mr. copy complete Board issued until after nation pension] records, [compensation and and, claim; on his April 2006 decision its other devel- reports, examination meaningful oppor- him a failure denied to the vet- added were opments which adjudication participate tunity Board’s claims eran’s after file 27-28. The Br. at App. 06 200f, with- Remand Order appellant, de- Secretary contends (15) days. in fifteen by the same represented having been spite 2006, when R. Suppl. entirety proceedings counsel issued its argu- made this neither before for sub- service connection claim for lant’s request- specifically Board nor ment not re- abuse, appellant had stance examination November ed the documents. requested ceived 11-12. Br. at Sec’y 06 report. furnish By failing to February On re- examination 2004 medical copy re- specifically a letter sent VA counsel *11 port before the Board (5) considered and re prior 2001; TDIU to August the on it in lied the and appellant’s to an entitlement extraschedu- appellant’s after the multiple for requests (6) disability lar rating; and the appel copy report, VA the fair violated lant’s entitlement to service connection for process principle underlying Thurber v. substance secondary abuse to PTSD are Brown, (1993). See id. at REMANDED for proceedings further con (“The entire thrust of the VA’s nonad- with sistent this decision. portions Those system versarial claims predicated upon August the Board’s and April provides a structure for which notice and addressing decisions foregoing the opportunity virtually to be heard at remand, issues are VACATED. On the every step process.”); see also New appellant may submit additional evidence Peake, day 22 Vet.App. 264-65 arguments and the (2008) (“Before relying any on additional is required Board to consider them. See remand], evidence developed [on the Kay v. Principi 16 Vet.App. Board should ensure that a]ppellant [the (2002). addition, the pro Board shall given notice opportunity thereof and an to ceed expeditiously. See 38 U.S.C. respond thereto.”); Thurber, 5 Vet.App. at 5109B, §§ 7112 (requiring Secretary to (“[B]efore relies, the [Board] ren provide for “expeditious treatment” of dering claim, a decision on a on evi Court). by claims remanded developed dence by or obtained it subse remainder the August Board’s 2004 and quent to the issuance of the most recent April 2006 decisions are AFFIRMED. SOC or claim, SSOC respect with to such the [Board] must a claimant with LANCE, J., concurring:
reasonable notice of such and of evidence I fully concur with the ultimate outcome the reliance it, to proposed placed be on reached I majority. separate write and a opportunity reasonable ly to my note disagreement with the con it.”). claimant to respond to The Court clusion that VA’s to failure consider new thus holds that necessary remand is conjunction material with VA to provide an opportunity original finality vitiates the respond to the information contained decision regarding original the 2004 VA medical examination (“When ante 5at and, fails to consider new after the appellant given has been and material evidence submitted within “reasonably opportunity” for response, to one-year appeal period pursuant readjudicate his claim for connec service and that tion for evidence establishes Thurber, substance abuse. See entitlement the benefit supra. sought, the un derlying RO decision does not become fi III. CONCLUSION nal.”). Muehl v. West held that Social Security Based on foregoing analysis Administration and a records received year review of the within of an appeal, record mat- RO decision “should (1) ters of have proper conjunction treatment of the been considered in (2) report; VRS claim” pursuant entitle- ment rating greater than that because the records were not so prior 1, 1997; 50% to July considered, “there was no final decision on lant’s entitlement a disability rating [original claim].” 13 161- greater than 2001; 70% Muehl, however, was decided entitlement to an award under the framework Hayre v. West
473 NOD, filed an and had he RO decision finality. error vitiated procedural held that “Thus, the issued an SOC. (denial have would (Fed.Cir.1999) of VA F.3d 1327 188 Hayre that it had notify to failure VA’s if appeal of purposes final for benefits in his SMRs obtaining unsuccessful been assist), to duty of was breach there preclude did not records] medical [service 318 Principi, v. by Cook part in overruled challenging the administrative from him banc) (en (Fed.Cir.2002) (grave 1334 F.3d raising the denying his claim and decision exception to not an is error procedural after he was duty to assist issue Cook, Federal In finality). of rule Id. of the decision.” of the basis notified by overrul this framework altered Circuit his case, of Young notified In this Mr. proce that holding grave Hayre and file opportunity to rights and had appellate finality of abrogate did error dural September 1996 original with an NOD extent, I To this Id. at 1341. decision. a so and statute He did not do decision. of portion overruled Cook believe no of [Dis- that “[i]f [N]otice mandates consider failure to held that that Muehl in with is accordance agreement filed 3.156(b) in § resulted to pursuant evidence period, prescribed within the chapter [original claim].” on the final decision “no fi- shall become or determination action Muehl, at 162. 13 7105(c). Young § Mr. nal.” 38 U.S.C. case, in this issue section The challenge the to the opportunity also had that procedural regulation § that consid- 1997 decision December RO’s ma of new consideration VA’s guides material evidence-which his new and ered within the by VA received evidence terial today. Like did, decision hence our same in decision much appeal time to chal- opportunity Hayre, Young Mr. had procedural duty to assist way that the his failure to consider initial lenge the VA’s will be how evidence governing statute conjunction with evidence received Cook, the case. in a claimant’s obtained failure Accordingly, VA’s original claim. this Court considered that 3.156(b) Circuit Federal does not apply to consider and ei appealing time for “held same finality has in the exception create an not run errors, did Board decision an RO or a so procedural way grave ther that other the veteran that have they type VA failed are not of the long where as material critical a claimant’s extinguishing information of with the effect (citing decision, do not F.3d at 1340 318 an adverse process.” right to appellate Cook, at 1341. Brown, F.3d finality. 318 vitiate blazon v. Ta Brown, Vet.App. 518 (1995)); v. Hauck as Nevertheless, result I reach the same Derwinski, Vet.App. (1994); Kuo view, because, my majority Derwinski, Vet.App. (1992); Ashley v. 3.156(b) back to to relate operates stated, opinion Cook that decision any subsequent Tablazon, cases, i.e., however, these that in re- and material new considers Hauck, Kuo, Ashley, supra, all ‘VA’s during the time to ceived VA statutory procedural comply failure achieves the This original determination. of regarding notification requirements 3.156(b) treading without §of objectives effect had the excep- determinations creating an holding benefit on Cook’s ap right claimant’s extinguishing finality reminiscent to the rule tion Cook, (“[W]e see Cook, decision.” F.3d at 1339 peal an adverse Hayre. Congress court Hayre, the ... indicates Distinguishing nothing exceptions any failure additional to allow regardless intended determined upon based finality of VA decisions development of duty to assist ”). relation- error.’ ‘grave procedural notice of Hayre was afforded Mr. operation fully where, here, back is also also 20.304, consistent with which states that grants service connection. Unlike a claim filing “the of additional evidence after the denied, that is granted, where a claim is receipt of notice of an adverse determina- new and material evidence received within *13 tion does not extend the time limit for appeal period may the by be construed initiating completing appeal an from as a claim for an rating, increased as it that determination.” Young’s was Mr. case. Whatever ad 3.156(b) Operation §of A. General evidence, given ministrative label is to the 3.156(b) anticipates Section the situation if it is new and material and is received material where new and evidence is re- within the appeal period, the decision re by at a time when ceived VA the claim is garding that evidence must relate back to year yet not final—within a after an RO original the claim. Where an NOD is filed instance, claim. the addition to new and material 3.156(b) § operates may so that VA consid- construing part that evidence as of sepa a er this evidence and issue a new RO deci- rating rate increased claim procedurally sion original that relates back to the claim posture beneficial because that prevents for of purposes preserving initially the as- the Board from necessarily being deprived signed effective application date and the of appellate jurisdiction of original over the rating provisions. the extant This serves because, claimant, This is so if the new example, the who was award- decision, ed service connection an RO material evidence is not part considered of but is disability rating dissatisfied the original claim being appealed, ap assigned. having process Without a peal subject would not be to a remand so lengthy Board,2 appeal to the which re- might first be considered NOD, quires filing waiting pro- an by agency original jurisdiction. of cessing SOC, of filing a Substantive Disabled Am. Veterans v. Sec‘y Veter of Appeal, the simply present claimant can (Fed.Cir. Affairs, ans his new and material evidence to VA and 2003) (Board’s review of evidence not con have it adjudicated considered and in a by agency sidered original jurisdic of decision, subsequent preserving RO tion in the absence of a waiver from the effective assigned date in the original deci- 7104(a)). § violates 38 U.S.C. sion. operates This also to avoid harm to Therefore, receipt of new and material evi savvy less who claimant would like new dence would not result in deprivation of considered, and material evidence be but jurisdiction the Board’s does not consider the filing understand that an NOD is 3.156(b) necessary prevent original appeal; original but RO deci- allows sion from becoming final and losing out on decision on that evidence to relate back to any effective assigned. original claim even if considered in the 3.156(b) Application B. separate of context of a Origi- Where rating increased nal Claim is Granted: New Evidence claim. Pursuant any RO Construed as a Separate Increased decision as to the increased claim is Rating Claim fully appealable but must relate back to Applicability original is not while the limited Board to claims that are denied proceed the RO but appeal with the of the original RO Currently, to the Board takes an Appeals of Veterans' for Fiscal Year average years produce (2009), of three a decision. http://www.va. 2008 19 available at James P. gov/V etapp/ChairRpt/B VA2008AR.pdf. Report Terry, Chairman of the regular treatment receiving case, does lant In this decision. is in severity of which flux. as- condition the originally lose the benefit case, bring the Board can some if evi- In that he would date as signed effective original decision while leav- finality disability rating was received dence as to award Further, open for a retroactive the door period. appellate after the within the upon evidence submitted jurisdiction over based stripped Board is course, the one-year appeal period. Of efficient This serves an original claim. as always can be considered challenge, new evidence is able to the claimant purpose: than original claim rather immediately part disability rating e.g., process can it if the RO separate materi- claim of new and through the submission exists, process *14 if it but al evidence this is not to the but being ef- initially assigned certified review of the 3.156(b) gives Ultimately, that case. date, example, may continue
fective friendly ability to be veteran Secretary the delay. pro- This interruption and without flexibility maintaining while administrative of decisions and efficiency motes the and new appeals both evidence process well as interests of claimants as serves the Therefore, efficiently. VA is free either useful particularly is where VA. This pending of a part as process is new evidence but new quickly is filed evidence NOD separate it as a of the treat until near the end not submitted If the new evidence mate- appropriate. one-year appeal period. awarded, compensation is then rial and summarize, allowing to treat by To award have effective date that separate claim as a new and new evidence original claim re- to the of the back date origi- filing of the back to the that relates chosen. gardless procedure of the 3.156(b) claim, potential solves two nal First, conclusion, that Mr. without I would hold problems. finally was de- possi- original would lose a 1995 claim unsophisticated Young’s veteran submitting by in 1996 be- by effective date the RO ble earlier cided appealed. was not precisely new cause that an NOD with determination evidence— remand, sophisti- If, Board determines in this case—while the situation (or by would VA June 1997 representative) evidence received cated veteran material, a new decision with new evidence then always an NOD was new and submit fight if he did considering date even preserve his effective on the were effect at rating provisions error based not think there 3.156(b) avoids claim will relate Section time of the back original record. by pre- original December 1995 unnecessary appeals date of the game potential effective date serving the if evidence is submitted
original claim new MOORMAN, opinion of Judge, filed the year it is material. within one if the Court. Second, to be allowing new evidence claim, § separate
treated as a LANCE, concurring Judge, filed continually delay appel- avoids need opinion. claim- protect in order to late review if is sub- ant’s effective of new evidence. constant stream
mitting a likely where particularly
This scenario
the issue is