*1 BERAUD, Leonard Claimant-
Appellant, McDONALD, Secretary
Robert A. Affairs, Respondent-
Appellee.
No. 2013-7125.
United Court of Appeals, States
Federal Circuit.
Sept.
Amy Odom, F. Legal National Veterans Program, DC, Washington, Services ar- gued for claimant-appellant. With her the brief were Barton Stichman and Louis George. Of Mary counsel on the brief was Hoefer, Firm, K. City, Hoefer Law Iowa IA. Hosford,
Elizabeth M. Trial Senior Counsel, Branch, Litigation Commercial Division, Civil Department United States Justice, DC, of Washington, argued for respondent-appellee. With her on the *2 At- the naval reserves Delery, F. thereafter served brief Stuart Assistant were Kirschman, General, May until 1988. torney Robert E. Jr., Director, Jr., Hockey, F. and Martin 23,1985, a claim On Beraud filed March Director. Of counsel
Assistant on. (“RO”) for, Regional inter with a Office VA Barrans, Deputy As- J. brief were David alia, described headache disorder Amanda R. Counsel and sistant General eye,” by right over “headaches forehead Blackmon, Attorney, United States Staff head while allegedly resulting from trauma Affairs, Department of Veterans Wash- 30, duty. on active J.A. On Novem- Ti- J. ington, Of counsel was DC. Michael letter, 12, 1985, the ber RO sent Beraud minski, General Coun- Deputy Assistant difficulty informing having that it was him sel. finding his service medical records and identify requesting he his reserve LOURIE, O’MALLEY, and Before obtain from units so that could CHEN, Judges. Circuit letter”). (“November them Opinion for the court filed Circuit 1985, 29, Beraud On November before Judge O’MALLEY. responded request, the RO the RO’s Dissenting opinion filed Circuit claim, his issued Judge LOURIE. that, although the explaining records be- complaints fore it documented head- O’MALLEY, Judge. Circuit aches, showed no those records challenges Leonard Beraud U.S. in- a chronic headache disorder. The RO (“Veterans Appeals for Claims of his the decision and formed Court”) judgment affirming a 9,1985. appellate rights on December Board”) (“the Appeals decision. That date Board decision set the effective Although this de- appeal Beraud disability for 1985, Beraud’s cision, 16, service connected respond- on he 27, award at 2004. Beraud claims letter, ed to the RO’s indi- November 1985, should when the effective date be cating location of his additional service disability he first his claim. The letter”). (“December medical records for 1985 claim Board found Beraud’s responded never to the letter. RO upon final final connection became service 1989, 29, On December Beraud asked Be- claim 1990. denial reopen previously the RO to denied Department Affairs cause the of Veterans reopened claim for headaches. RO (“VA”) whether evi- failed determine claim, on the but denied timely dence Beraud submitted after the 12, 1990, finding merits on February on the 1985 claim was new disor- did not incur headache 3.156(b) (2014), under 38 material thereof, der, aggravation pe- however, pend- that initial claim remained (“1990 Decision”). The RO riod ing, despite decision. did not refer Beraud’s December fur- therefore reverse and remand letter, nor medical rec- did mention proceedings opin- consistent with this ther subject of the letter. ion. the 1990 Decision. Beraud did Background reopen again asked the RO to . duty in but the RO U.S. claim in 1992 and Beraud served active requests Navy both it found July July from 1974 to denied he had not submitted new and material regulations precedent make clear justifying reopening. that a claim remains until the VA renders decision. It
On August Beraud submitted also noted when the VA receives new an informal claim RO compensation for same headache disor- and material evidence within the one-year con- der. evaluating appeal period after it issues a rating deci- *3 2004 sidered a November VA medical sion, readjudicate “must the claim and opinion stating that headaches are at- so may failure to do render the claim to a injury tributable head he sustained unadjudicated.” and Id. active duty 1975. Based on this this Citing holding court’s Williams evidence, granted RO Beraud service Peake, 1348, 521 F.3d for migraine connection in a headaches however, majority stated that a “sub rating December RO decision. The sequent claima assigned disability rat- fifty percent 27, ing, to a 2004, claim that has August effective the date not Beraud finally the informal claim. been adjudicated terminates pending status the earlier claim.” Ber appealed
Beraud the December 2004 de- aud, 26 at Vet.App. majority 318-19. The cision, asserting that effective date that, thus concluded even Beraud’s ini his award have been should the date he tial claim remained initially claim for a dis- headache order in VA had made the 1985. In December determination, appeal, finding Board denied Beraud’s the 1990 Decision neverthe decision on initial claim in 1985 and pendency less terminated the of that claim. 1990 Decision conclusion, at In reaching Id. identical claim final. The also Board presumed majority in making noted that Beraud’s claims 1992 and Decision, the 1990 VA considered final, 2002 were now and that the VA had evidence, including the records no received other communication indicat- to in Beraud referred his December 1985 ing an intent to com- Id. 320 n. 4. letter. at pensation for a headache disorder until dissent, however, According to the be- August Therefore, 2004. deter- Board cause the VA never determined whether mined that Beraud could obtain an effective date those medical records new for his award earlier constituted than material evidence under the ini- tial despite remained Court, to the Veterans 1990 Decision. Id. at 322. The dissent arguing that his was initial claim argued inapplicable be- because the VA never determined whether here, cause, regulation a specific to in referred —38 § 3.156(b) “requires continued 1985 letter constituted new — of a pendency evidence under 38 C.F.R. even where there Beraud, According to that new denial,, subsequent final if the evidence has gave pending, unadjudi- to a rise adjudicating not been or considered cated claim. See Beraud v. Indeed, appellate body.” J.A. the dis- (2013). Vet.App. 313, 317-18 sent noted medical records which Though in 1985 panel majority “appear RO said needed affirmed the decision, acknowledged it first yet be Id. at 322. unobtained.” outcome of trumps controls the
Discussion disagree. this case. We court reviews This novo, a veteran de the VA awarded legal determinations Court’s Peake, posttraumatic connection for stress Rodriguez v. one (Fed.Cir.2008). 38 U.S.C. 1363. Within Under disorder. award, requested 7292(d)(2) (2012), extent of that the veteran except on additional an increased based a constitutional appeal presents that an obtained. Id. a chal medical records he had issue, not review may this court as a regarded request the later new lenge factual determination Thus, while the VA awarded claim. to fact. application of law rating, higher did with the veteran a states part, In pertinent corresponded to his effective date received material evidence “[n]ew veter claim. Id. at 1364-65. The *4 period appeal of the prior expiration to the argued the Court before having been filed ... considered as will be should have been the the effective date claim which was in connection with the the of his initial because deci date claim beginning of the at the final, never as the VA sion thereon became has one generally A veteran period.” determined whether the medical rec never of the notice mailing date from the material he new and submitted were appeal. to 38 U.S.C. Board determination Id. under The 7105(b)(1) (2012). disagreed, finding that did not the VA in Bond v. This court held because to make that determination need claim, as a new his submission treated 3.156(b) any to requires the VA “assess court final. Id. This which then became pe- the relevant reversed, 3.156(b) evidence submitted requires holding that as to riod and make determination subsequently whether the VA to determine material it constitutes new and materials new constituted Rely- relating to the old claim.” evidence relating material to an evidence Ber- ing on this court’s decision claim, regardless of how character the VA to because the VA failed aud asserts Id. that later submission izes evidence. medical determine whether the char reasoned We in his December 1985 Beraud identified as a new acterization Bond’s submission and material evi- letter constituted new possibility the claim did not “foreclose his initial dence under may have also contained submission] [the despite remains the Decision. pertaining to” new material the initial claim. Id. responds that Bond is government Williams, a veteran’s not con- the VA denied inapplicable because did here connection for application final deci- cern the effect condition, notify the but failed to prior pending nervous sion on a claim identical as- of its decision. F.3d at Specifically, government claim. veteran nothing in for the denied another claim that serts that Bond stands When the VA subsequently to make a veteran proposition that the VA’s failure him of disability, it inform the finali- same vitiates Decision, appeal, The veteran did ty of Beraud did decision. Id. reopen the Instead, sug- petitioned when he later to government appeal. claim, He request. denied Id. gests our earlier decision Board, in his ultimately which ruled veteran appealed received entitlement, the notice to which he favor and awarded him service connection claimed petitioned the date he the veteran understood how his claim was effective resolved, claim, ultimately reopen thereby lessening rather than the date Here, contrast, prejudice him. original application. veteran Court, asserting express regulatory VA was under an obli- gation to granted that the Board should make a determination regarding have his initial claim as the effective of the date the character evidence Beraud new has, because the claim day, date remained submitted and not done notify him of As made clear in the VA’s failure to so. VA’s obligations op- its decision thereon. Id. Both the Veter- are not government tional. disagreed, effectively ans Court and this court rea- While problem soning cured the notice terminated VA has never made the determination its upheld regulations status of initial thus impose upon own here. cannot, government requests, the Board’s Id. at 1350-51. as the sim- decision. ply regulatory allow skirt its not control Williams does the outcome obligations by revisiting deter- submis- here because it did involve based, yet again, mination on an incom- one-year sion of new within To plete strip record. do appeal period or the VA’s un- *5 § any significance.1 of We decline 3.156(b). § cites government der var- to to extend Williams these circumstances. supporting proposition ious authorities the- subsequent adjudi- in that a reject government’s We the cation on terminates the assertion the Veterans Court was cor of pendency prior a but none involve to presume rect that the VA considered all of such a effect decision on evidence, including substantive duties under identified in his 3.156(b). § letter, 1985 it its Deci when made 1990 In such a Though general presumption we concluded later sion. of applies final determination a veteran which where record VA is before the complete ceived notice could cure failure to no statutory regu and there or VA’s is determination, provide obligation notice of an earlier latory would be thwarted thereby to allowing application claim be- of presumption, in Bond conclusion, reaching come final. In unambiguously we pre-pre circumstances, expressly reg- here, that no or sumption noted statute in like required contrary ulation is no conclusion. where VA there indication that the that, 521 at F.3d 1350. We also reasoned its made under determination repeated acknowledgement 1. The fact that Beraud could have court’s this con- 1990 Decision does "claimant-friendly adjudicato- obviate [nature] of Nothing cern. Decision cured about the 1990 ry system” that has been "established for vet- obligations to fulfill its under Shinseki, Sprinkle erans’ benefits.” 733 v. nothing in that informed 3.156 decision (Fed.Cir.2013); F.3d 1189 Bonner v. missing that his service medical rec- Nicholson, (Fed.Cir. 497 F.3d 1331 any purpose. ords were ever considered for 2007) (noting veteran-friendly "obligatory Imposing solely such a burden on the veteran position governing the law veterans’ fulfilling the VA to excuse from its claims”). particularly unjustified of this
1407 LOURIE, dissenting. Judge, Circuit 3.156(b). at 1368. We did F.3d 659 7104(d)(1) light of 38 U.S.C. Bmd in from the respectfully I dissent in- (1996), requires that the Board which to reverse the decision majority’s decision statement any a “written clude Court, affirmed the the Veterans conclusions, findings and of the Board’s that held that Ber- of the findings for those bases the reasons to an effective date not entitled aud was conclusions, issues on material 27, 2004, con- for service prior to on the record.” presented law fact and Ber- See migraine nection headaches. presump- To 659 F.3d Shinseki, (2013). Vet.App. 313 aud v. “effec- urges would government tion that the Court Because believe from review the VA’s errors tively insulate interpretation its our not err to obligation, fails fulfill an whenever law, I affirm the decision prior case of its dereliction in the no firm trace leaves Court. particularly true Id. This record.” to review decisions jurisdiction Our indulge us asks to government
where is limited statute. Court rec- considered presumption generally ju lack U.S.C. We n reaffirm never obtained. challenges to review risdiction provide must under or to factual determinations Board’s directly responsive See, e.g., John to fact. application of law that, until it does the new submission and (Fed. Derwinski, v. 949 F.2d son so, open. claim at issue remains Cir.1991). jurisdiction in this case is Our of whether the Veterans limited review this court to government asks allow interpreted this court’s properly it makes the VA terminate when Peake, 521 v. holdings Williams even subsequent adjudication failed (Fed.Cir.2008), and duty its duty fulfill —a in the is not a substan- government concedes my context on the VA. Oral burden administrative tial *6 by not undermined view, Williams is 19:42-20:20, http:// available at Arg. at in Bond, this control and Williams should oralarguments.cafc.usc-ourts.gov/default. case. (“No, [the aspx?fl=2013-7125.mp3 an
§ not be Williams, determination] an ini- In that we determined VA.”). In on the extreme burden to a lack tial claim remained due unambiguous disallowed, dic- Bond and the but the claim was of notice that 3.156(b), we by decline do so. tated of an identi- that final we held the initial
cal
claim terminated
second
We held that
claim.
Although
fi-
would hold that
3.156(b),
nality
the context
is
thus
there
did not err in concluding that, under
Williams,
no reason to limit Williams
cases in-
pending, unadjudicated
errors,
volving notice
and our
claim
cases have
by
subsequent
terminated
adju-
limited Williams in such a
See dication on the merits of the same claim.
way.
Shinseki,
Charles v.
majority
incorrectly holds that
(Fed.Cir.2009) (holding that in
context Bond
“controls the
of this
outcome
case.”
3.156(b),
§of
an original claim
Maj. Op.
that re-
at 1405-06. Bond undisputedly
unadjudicated
mains
as a
requires
of evi-
result
the VA make
determina-
dence submitted within one
tion
respect
with
to evidence under
original
claim is not
rendered final as a
but nowhere does Bond either
result of an identical later-filed
explicitly
abandoned
or implicitly
out an excep-
carve
because,
claim
unlike in
tion to Williams 3.156(b).
the la-
ter-filed
claim
abandoned
has not been
does
involve a
that termi-
merits);
also
adjudicated on
see
Jones
an
adjudi-
nated
initial
and the final
(Fed.Cir.
cation of an identical
second claim cen-
2010)
(It
“logical
is a
extension of
holding in Williams. In
finality
tral to the
”
veteran has a
“[i]f
we
presume
declined to
that the VA
appellate
status”
due
considered and
evidence submit-
veteran,
by
issue
statement of the
ted
659 F.3d at
case,
“a
then
deny-
the Board
that presumption
applied
can be
cases
ing subsequent
effectively
identical claim
there
adjudica-
informs him that the earlier claim also has
tion of an identical second claim. That
been
appeal.”).
disallowed
gives
second claim
oppor-
veteran the
tunity to raise the issue of evidence that
years
decided three
after
was
previously
considered.
Williams, held
the VA was re-
quired to determine if a submission
The majority expresses
concern
appeal period
affirming
the Veterans Court would allow
constituted new and material evidence re-
effectively disregard
VA to
the re-
lating
pending claim,
Maj. Op. quirement
even
submission is
concern, however,
treated as
increased That
is misplaced.
First,
noted,
claim.
“‘is ” motion.’ error] unmistakable Nicholson, 421 F.3d
(quoting Andrews v. (Fed.Cir.2005)); see also 38 7111(a) (providing for revision
U.S.C. upon unmis- based clear and decisions error).
takable
Reversing potential has to re- here closed
open were determinations adjudicated
final decisions Thus, foregoing for the rea- merits.
sons, respectfully dissent from the reversing
majority’s Court.