*1 Supreme constitutional ramifications His caution is majority opinion.
Court’s If, I be the well taken here. as believe dicta, majority here is case, opinion Secretary amounts then direction its advisory opinion and more than an little given precedential value should be judicial propriate category to that utter- above, I stated ance. For reasons respectfully dissent. TAVARES, Appellant,
Henry R. Anthony PRINCIPI, J. Affairs, Appellee. Veterans No. 02-799. Appeals States United for Veterans Claims. Vancouver,
Mary Royle, of Wash- Anne ington, pleading on the lant. *2 McClain,
Tim
Counsel;
S.
General
R.
“attended
to” the
Campbell,
Randall
Assistant General
“shortly after [notice
the BVA
of]
decision”
Counsel; Thomas A. McLaughlin, Special
time,
was received and
at that same
Assistant
appellant
the Assistant General
Coun-
had “mailed an appeal letter
sel;
Senseman,
Cristine D.
Appellate
[the
At-
a tendency
Court]
[he has]
(non-
torney; and Gabrielle L. Clemons
to be redundant.” Appellant’s June 2002
attorney practitioner), all of Washington, Response
at 1.
(Resp.)
response,
D.C.,
(1)
were on the pleadings
appellant
for the
further asserts that
since
lee.
he had been in contact with
Mr. Padilla on
regard-
numerous occasions
KRAMER,
Before
Judge,
Chief
and
(2)
ing this appeal;
after he received a
HAGEL,
KASOLD and
Judges.
copy
decision,
of the BVA
he visited the
Diego
San
RO and showed the decision to
KRAMER,
Judge,
Chief
filed the
Padilla,
who “vowed to work on [the
opinion
KASOLD,
of the Court.
Judge,
appellant’s] appeal from a
angle”;
different
filed a dissenting opinion.
and
Mr. Padilla expressed that he
KRAMER,
Judge:
Chief
“get
appeal]
[the
to [the
in a timely
Court]
fashion.” Id. at 1-2.
Before the Court is the issue of whether
Further,
appellant
in April
asserts that
timely
filed a
Ap-
Notice of
telephoned
2002 he
(NOA)
Mr. Padilla in order to
peal
18, 2002,
from a January
check on the
appeal; May
status
(Board
Board of
Appeals
Veterans’
again telephoned
BVA)
Padilla
decision. For the reasons that fol-
order to check on the
low,
appeal;
status of his
the Court will dismiss for lack of
2002 telephone con-
jurisdiction
appeal.
versation, Mr. Padilla informed him that
History
I. Procedural
“it would take between [eight] to [nine]
Pleadings
Parties’
months before
appellant]
[the
heard back
5, 2002,
On June
the appellant
pro
[from the
Id.
Court].”
se an
18, 2002,
NOA as to the January
BVA
Board,
which the
inter
Additionally,
asserts
alia, denied entitlement to
service connec- on June
Padilla,
he met with Mr.
tion for
of exposure
residuals
to hallucino- who explained to
substances,
genic
including paranoia, de- would
sign
need to
some papers with re-
pression, back problems, total
gard
intolerance
to the processing of
appeal,
depression
mania,
stress with
hyper-
that Mr. Padilla related that he never had
excitability, catatonia,
tendencies,
violent
processed an appeal to the
brain
changes,
wave
and lack
equilibri-
past.
Id. at
date,
3. On that same
um. The Court notes that it
asserts,
received the
requested
days
NOA 138
after the date that
complete a Declaration
Board mailed notice of its decision. The
of Financial Hardship form
NOA
(Clerk),
Clerk of the
on June
and Mr. Padilla stated that he would send
2002, ordered the appellant
explain
why with the
NOA letter on the appellant’s
his appeal should not be dismissed for lack behalf.
Finally,
Id.
relates
jurisdiction.
filed a re-
that he received his docket number on
sponse in which he
8, 2002;
asserts
he believed
that Mr. Padilla “had as-
that Mr. Alfonzo Padilla of the San Diego,
sured
appellant]
[the
case
[his]
had
California,
(RO)
Regional
VA
Office
had
been docketed all along[;] and [that Mr.
]mark). Also,
a report
I have
post[
had
him]
had
[he]
assured
wait.”
at 2.
machine that
nothing left
do but
shows
[facsimile]
Clerk, noting
it
[C]lerk
was received
*3
facsimile from the San
received via
town[,]
been
you’re
I’ll
Whenever
Court.]
RO,
response
a
Diego
ordered
Secretarial
you a
give
copy[.]
stayed proceedings.
Id.
2002,
an ad-
July
In
the
2002,
11,
September
On
In
response.
to his
dendum
June
from
further cor-
received
addendum,
that
appellant states
he,
alia,
re-
respondence
inter
position that the
for
“it is
deadline
[his]
arguments;
at-
previous
iterates
was
was tolled when
filing [his NOA]
[he]
correspondence
a
to that
tached
writing
(including in
repeatedly informed
6, 2002,
of the
5 and
e-mail
...)
copy
June
that
by highly! ]placed
employee
VA
Padilla,
(2) cop-
with
filing
exchange
NOA]
was
with the
a[n
[Court]
[VA]
8, 2002,
bills,
telephone
dated from Feb-
July
behalf.”
Addendum ies of
on [his]
2002,
argues
reflecting
VA to
numerous
ruary
at 1. He
relied on
to June
of his
him the
assist
calls to Mr. Padilla’s office
11,
Secretary
2002,
that the
should
benefit
September
Supple-
telephone.
(Corr.)
1-3,
unclean hands.
Id. Attached to
Correspondence
mental
copy
is a
of an electronic com-
addendum
2,
correspon-
4.
in the
Ex.
Included
(e-mail)
exchange, dated June
munication
is a
of Mrs. Brenda
dence
statement
2002,
6,
and Mr.
between
Tavares,
appellant,
of the
in which
wife
5, 2002,
June
e-
appellant’s
Padilla.
essentially
she
attests to
statement
mail to
Padilla reflects that
veracity
appellant’s
of the
asserted ver-
confirming
lant was
with
of events.
Id. The United States
sion
certi-
two letters” were mailed via
“[t]hose
Cir-
Appeals
Federal
mail,
requested,
return
and the
receipt
fied
(Federal
16,
Circuit),
September
on
cuit
contains two U.S. Postal Service
e-mail
2002,
Jaquay
issued
its
(USPS)
tracking
envelope
numbers.
(Fed.Cir.2002)
Principi, 304 F.3d
(Ex.)
8, 2002, Addendum,
Exhibit
banc).
(en
in that e-mail the
presumes
Secretary
September
On
to the
referring
above-men-
He
response
filed his
Court.
and Declaration of
tioned June 2002 NOA
NOA is untime-
argues
(The
Hardship form.
Financial
there
no evidence that
ly;
num-
tracking
that one
*4
paperwork,”
the
Mr. Padilla had declined
(and
appellant
Court received from the
only
that
explained
appellant
and had
the
subsequently accepted
filing)
for
two addi
could complete
procedures.
the Court’s
pieces
correspondence.
tional
In
of
his
Declaration,
Id. at
In
1-2.
Mr. Padilla
September 17,
correspondence,
the
that,
acknowledged
their
he
argues that
never received
meeting,
he had informed the appel-
response
from the
a
Court
a
lant
appel-
that he would ensure that the
request
for information on
an appeal
ready
lant’s
request
file
for a
“[claims]
that he allegedly had sent to the
in
from the
Id. at 2.
[Court].”
January 2002 and attributes the Court’s
According to Mr. Padilla’s
assertions
non-response
request
to that
to the situa
Declaration,
appellant,
the
a few weeks
tions
result of September
created as a
meeting,
after their
inquired
subsequent
and the
anthrax-contami
about
time frames”
“[the Court’s]
and Mr.
involving
nation scare
Septem
USPS.
Padilla did not
that
provide
information to
17, 2002,
ber
at 3.
appellant’s
Corr.
not
and did
“check
to see
20, 2002,
September
appears
submission
if
[the
claims] file had been
signed
be a
certified
affidavit from
requested by
Id.
[the Court].”
Mr. Padilla
essentially
Mrs. Tavares in
she
reit
that,
5, 2002,
further asserted
on June
erates
appellant’s allegations. Sep
him
appellant contacted
and he located the
20, 2002,
tember
Corr. at 1-5. Subse
file,
appellant’s claims
which was still pres-
quently,
stayed
this
matter in
ent at the
Diego
San
RO. Declaration at 2.
order for
attempt
to retain
Because
thought
already
he
claims file
Also,
counsel.
the Court notes
on
Washing-
have been transferred to
December
the Federal Circuit
ton, D.C., in
appeal,
connection with the
Santana-Venegas
issued
v. Principi, 314
“expressed
Mr. Padilla had
concern
[his]
(Fed.Cir.2002).
F.3d 1293
appellant]
[the
asked
appel-
[had]
In January
counsel for the appel-
if
kept
copy
lant]
he had
and,
lant
appearance
April
entered her
paperwork.”
During
Id.
a later conversa-
11, 2003,
permis-
moved for
tion
day,
that same
had re-
sion to submit a supplemental response to
sponded that the Court did not have his
12, 2002,
the Court’s June
order.
On that
and that he could not locate his
(and
date,
same
paperwork.
regard
subse-
appel-
With
quently accepted
filing)
lant’s
Diego RO,
June 2002
to the San
visit
(with attachments).
supplemental response
Mr. Padilla
asserted
his Declaration
supplement,
that he had
disagrees
assisted
in com-
pleting “another set
forms to
the assertions Mr.
send to
Padilla’s Decla-
he
ration
argues
and that
had faxed to
because of
[Court]”
his con-
Court the appellant’s
July
NOA and his Decla- versations
Padilla from
with Mr.
Jaquay,
supra,
had
both
which both ad-
and because Mr. Padilla
June 2002
involving
availability
previous
in a
matter
intervened
dress
context,
veterans
officer
inappo-
service
veterans
are
benefits
(VSO),
Secretary’s
he believed
to the instant matter.
site
April
Mr. Padilla.
filed
Specifically,
Reply
4-6.
Resp.
argues
5-9. He
further
unlike
argues
Jaquay
matter is
alleged
Mr. Padilla’s
statements
because it does
involve the
had a docket number and
motion for BVA reconsideration
be-
other
statements
about
Padilla’s
cause there is no
of a defective
record
process
appellate
Court’s
misled
pleading having been
within the
filed
stat-
lant
to believe that his NOA had been
He
utory-appeal period.
Id. at 4-5.
also
in the
2002 to
2002 time
argues
that this case “is not affected
”
argues
frame.
also
essentially
Id. He
because,
Santanar-Venegas
again, there
reflecting
Mr. Padilla’s e-mail
of a
pleading having
is no record
defective
pellant had until June
to file
statutory-appeal peri-
within the
been filed
untimely
him to file an
NOA caused
“it
appear
od and because
does not
*5
Thus,
in
requests
June 2002. Id.
he
appellant]
misled or induced into
apply equitable tolling
permit
the Court
to
allowing
pass.”
the
deadline to
Id.
support
his
continue. Id.
9. In
to
Additionally,
Secretary argues
at 5.
the
arguments,
of his
attached
(Harold)
Bailey
that this case
unlike
v.
alia,
April
response,
his
2003
an affi-
inter
(Fed.Cir.1998) (en
West,
to include
Board mailed notice of its
(Fed.
20,
Principi,
decision. The
Barrett
137
generally
120-day judicial-appeal period
applies equitable
if the Court
only
ceed
period for
timely
judicial-appeal
2002 NOA
tolls
tolling to
the June
deem
Court).
7266;
held
Santana-
Federal Circuit
filed. See 38
1298;
situation,
“trigger[s]
Jaquay,
at
304 such a
an
Venegas, 314 F.3d
(Harold),
1288;
120-day period
Bailey
tolling”
160 F.3d
of the
equitable
F.3d
file a reconsideration mo-
1364-68.
within
Jaquay,
304 F.3d at
tion with
BVA.
circumstances, equitable
Under certain
1289.
period may be
judicial-appeal
Dep’t
Irwin v.
Veter-
appropriate. See
Santana-Venegas,
Subsequently, in
Affairs,
ans
498 U.S.
S.Ct.
that, where an
Federal Circuit concluded
(1990);
(Harold),
Bailey
In
Circuit conclud
Jaquay,
the Federal
correspondence
of
all
re
days
receipt) to
that,
appellant, during
an
ed
where
VA).
by
again
The Federal Circuit
ceived
period,
120-day judicial appeal
misfiles
—
(Ed
Bailey
applied
prong
Irwin
Board reconsideration with
his motion for
ward)
that,
appel
and concluded
where
origi
from which
claim
the same RO
“
lant,
120-day
judicial-appeal
nated,
due
diligence
‘exercise[s]
”
by
a[n NOA]
to file
com
period, “attempts
legal rights.’
Jaquay, 304
preserving his
clearly intended
Irwin,
a document that is
pleting
498 U.S.
(quoting
F.3d at 1287-88
ha[ving]
...
as
453);
NOA]
to serve
a[n
see Rosier v. Der
at
111 S.Ct.
winski,
[RO ]
to the
(setting
249
document delivered
Vet.App.
1
from
[,
is
originated
juris
[his ]
he]
claim
for Court
have
requirements
forth
equitable
of
entitled to invoke the doctrine
appellant has
diction
when
over
(Edward), 351 F.3d at
tolling.” Bailey
underly
for reconsideration
motion
added).
to Santa-
(emphasis
Similar
filing
1385
NOA with
ing
decision before
Board
Circuit
the Federal
nar-Venegas, supra,
Court;
filed with BVA within
such motion
that,
Barrett,
refer to the fact
although Bailey,
any potential
ther
applicability of
120-day appeal period (specifi-
Nevertheless,
within the
supra,
to this matter.
cally,
day),
on the 107th
had misfiled his
argu
free to raise
such
NOA with the RO from which his claim
ment
a motion for reconsideration that
originated, the RO had taken “no action
supported by appropriate
evidence. See
Vet.App.
35(a).
respect
to that
until
document
R.
[nine U.S.
document,]”
receiving
months after
respect
Secretary’s
With
to the
argu
only
and then
upon inquiry
Bailey’s
ment that Santana-Venegas
and Jaguay
representative.
Id. at 1383.
inapposite
are
because the instant matter
does not involve a misfiled or defective
Further,
prong
under the second
pleading,
agrees.
opin
Those
Irwin, equitable tolling may be available
explicitly apply
ions
to instances where a
where an
“has been
induced
claimant’s misfiled or
pleading
defective
adversary’s
tricked
misconduct into
Irwin,
satisfied the first prong under
su
allowing
Irwin,
pass.”
deadline to
pra,
pursuing
judicial
remedy. See
U.S.
S.Ct. 453. In applying
Santana-Venegas,
1297-98;
314 F.3d at
this second
prong,
Irwin
the Federal Cir
Here,
Jaguay,
tion of the the the Court notes best, has not pellant demonstrated the evidence as to what occurred is in in- exchange June 2002 e-mail misled or equipoise. him allowing judicial-appeal into duced the equipoise standard 38 U.S.C. Cintron, to period expire. 5107(b), however, only § applies the 257; Brown, supra. at as that Inasmuch Secretary’s, Court’s, not determina- the could have a on Mr. Padil- bearing e-mail tions; applicable standard here is the credibility on that it ground la’s docu- preponderance of the evidence standard ments efforts to assist the appellant’s under which it is the burden to appeal an purport- after Mr. Padilla demonstrate that he was misled induced (see appeal had declined edly to file the allowing period judicial-appeal into 1-2), cannot Declaration con- 7266(a); See 38 expire. McNutt appellant’s clude and his wife’s Bethea, supra. Consequently, both are more than Mr. statements credible concludes that has Stokes, supra. Padilla’s statements. See not met this burden nor burden of notes, regard, In this with re- demonstrating by a preponderance of the credibility, spect appellant’s that he timely evidence that his ANO was filed. alleged that “an
has he sent to the Court Therefore, juris- See id. the Court lacks letter,” Appellant’s Resp. June appeal. diction to review this 1, but that the Court has III. Conclusion any filing. Similarly, such initially asserted that Upon foregoing consideration of the to work on appellant’s] appeal “vowed [the parties’ pleadings, is DIS- angle” from different then asserted but jurisdiction. for lack of MISSED that Mr. Padilla he simply had stated that send a appellant’s letter on the be- KASOLD, Judge, dissenting: after Mr. half Padilla had related to the squarely case falls the equi- This within processed never had tolling parameters table established Appellant’s Court. West, (1998), Bailey v. 160 F.3d Resp. at 1-3. finding any held even without a dissenting Judge, concluding on part employee misconduct of an statements are more credi- Affairs, Department Veterans Padilla’s, ble than Mr. fails to account for file an appeal equitably time to tolled the above-mentioned concerns when the veteran has “lulled ... into Instead, statements. accepting relying upon advice and relies evidence of limited val- probative government” thereby aid of the “mis- weigh ue to conclude that “the facts allowing led ... deadline significantly more favor of pass.” Id. 1365. Mr. was so Tavares recollection of than they lant’s] events[] in this lulled case. in favor of weigh Mr. Padilla’s.” Post at According Tavares, to Mr. Mr. Padilla Specifically, although the helping had been claim since may have visited Mr. made office, July 2001. Mr. Tavares telephone calls to his submitted tele- phone reflecting cannot conclude that ver- records calls numerous what 2002 Mr. through July sion of occurred visit or call telephone to Mr. Padilla more credi- Padilla’s number at the San Die- ble than Mr. Padilla’s version of events. go Regional Office. He also submitted a *10 2002, 5, when he was advised to On June September 2001 letter Mr. of a copy documents need- by Padilla some Mr.. right to a Board hear- waiving his Padilla his wife signed, to Mr. Tavares and ed be day 22 or January ing. On day trip same undertook the 60-mile Tavares Mr. received complete Mr. and to Padilla meet claim, and his wife denying his he Board of and Declaration Appeal another Notice to with Mr. miles meet drove over 60 then Hardship, of Financial which were During that appeal. to discuss an Padilla by Mr. Padilla. Mrs. faxed to the Court he Mr. Tavares asserts that was meeting, Sep- an affidavit dated Tavares submitted that he “work on by Mr. Padilla would told 2002, state- supporting tember and appeal angle,” from a different Mr. ments of her husband. away meeting came from that Tavares statements, to In contrast Mr. Tavares’ understanding that Mr. Padilla with the Padilla Mr. assisting does not mention Mr. claim into the see that went “would early implying as Tavares Mr. Appeal [that of Veteran’s January met Mr. Tavares in that he first support.”1 would a letter of Padilla] send 2002. Mr. Padilla states While that in March 2002 Mr. Tavares states meeting Tavares at the told Mr. by Mr. that his was advised Padilla he help him file his was not able to he assigned filed and a dock- appeal him exact- appeal, helping admits to do he number, agreed that Mr. to et June, explanation is ly although that in no in the file the docket digging” “go was why as to such assistance provided it Mr. provide number Tavares. January. Mr. permitted in June but not Mr. Tavares further states that contin- acknowledges to Mr. talking Padilla also to maintain contact with ued after Tavares a few weeks next Mr. Padilla over the several months he told although he states that meeting, trying get his docket number infor- provide Mr. that he could neither Tavares included nu- appeal; mation about his this about time nor obtain information messages. voice In a conver- merous no frames; strangely, Padilla makes Padilla, Mr. Tavares states sation with calls made to mention of the numerous it take 8 to 9 Padilla states by that he was told that would Mr. Tavares.2 Mr. told Mr. Tavares on June case be heard. also months before his copy inconsistent with an is not majority that Mr. Tavares assert- of *11 end, way contacting that he had no of Mr. Tavares’ belief assis- and that he was concerned about tance from Padilla. Mr. Mr. The fact that helped complete because the claims file in Padilla forms peal appeal was still weighs Mr. and fax them office. Padilla confirms that Mr. Ta- also against that day came to the recollection Mr. Padilla vares his office same and he told they repeatedly and Mr. Tavares together completed sat down forms, could set of that Mr. not assist and that he had no another and Padilla Court; indeed, way contacting it faxed those forms to the Court. weighs in support of Mr. under- Tavares’ faith ascribing Without bad to either standing that Mr. Padilla “would see facts, party, my opinion, in weigh sig the claim into went the Court of Veteran’s nificantly more in of Mr. favor Tavares’ Appeal and Mr. [sic] [that Padilla] events, they recollection of than weigh send a support.” letter of of Mr. favor Padilla’s. See Stokes v. Der winski, (au Mr. behavior in on Mr. relying 203-04 Tavares’ thorizing juris the Court to find facts for Padilla’s assistance to file his claim also is purposes). undisputed pro- dictional It is consistent with documentation he duced and Mr. Tavares the statements he and his wife drove over miles to meet Court, immediately Mr. submitted to this Mr. Pa- upon with Padilla whereas receipt actively filing dilla’s behavior in of his notice of Board decision and June 2001 direct again immediately contradiction to upon learning that an filed, statements claims to have appeal had not and that numer made to Mr. Tavares and the statement phone by ous calls were made Mr. Tavares that he made to this Court regarding his Mr. phone Padilla’s office number. ability provide assistance to Mr. Ta- actions Mr. These evidence Tavares’ inter vares. Mr. Padilla’s failure to address in appealing est claim and his belief extended contact and working relationship that he would receive assistance from Mr. he had with Mr. Tavares from June Indeed, Padilla. Mr. Tavares made at through beyond, June 2002 and and his phone least calls to Mr. Padilla from the failure to many phone address the calls date met with him on 22 or made to him between and June to discuss appeal through weigh against accuracy also 2001, when the filed Mr. short, recollection events. Mr. Tavares,3 behalf of Mr. Padilla’s statement to this Court is inher- reasonable, is no explana there alternative ently behavior, with inconsistent proffered by tion or Mr. assertions, previous statement, his own Padilla, or consistent facts and the documented facts. case, other than that Mr. Tavares believed Mr. Padilla “would that the claim see went Overall, supports the evidence a conclu- Appeal into Court of Veteran’s sion that Mr. Tavares has demonstrated [that would send a Padilla] letter of by a preponderance of evidence that he It support.” undisputed is also that Mr. was into accepting relying “lulled helped complete Tavares upon the govern- advice aid of the forms and that he faxed them thereby to ment” and “misled ... allow- confirms, Court. ing This least in pass.” deadline to Bat- ons times 3. Phone records submitted Tavares before after these dates. show he also Mr. Padilla called numer- *12 Secretary has not Finally, the at 1365. ley any preju- perceive, and I fail
alleged, finding Secretary by a dice applicable this case. tolling is Principi, Barrett v. (2004). above, respect- I stated For reasons fully dissent. Jr., URBAN, Appellant, T.
Paul PRINCIPI, Secretary Anthony J. Affairs, Appellee. KS, Veterans Carpenter, Topeka, for Kenneth M. appellant. No. 03-1329. DC, Clemons, Washington, L. Gabrielle Appeals appellee. Court of for United States for Claims. Veterans IVERS, GREENE, and Before 29, 2004. HAGEL, Judges.
ORDER
PER CURIAM: Urban, counsel, appeal- through Paul T. a Board March ed (Board) Appeals Veterans’ rating Board which the awarded individual unem- disability total based (TDIU) his service-connect- for ployability moved ed disabilities. jurisdiction, lack of dismiss adjudicated by the asserting that the claim deci- that the Board granted, Board was Urban, not adverse to Mr. sion was that, therefore, controversy ex- no case Secretary’s parties. isted between September 1-2. On Motion at to the Secre- response Mr. Urban notes USPS expira- prior filed an NOA reflected in the June bers and that judicial-appeal period; tion of corresponds tracking to a USPS e-mail warranted because equitable tolling is not imprinted envelope contain- number did actions and statements Mr. Padilla’s duplicate ing copy allowing the not induce 2002, NOA; copy was Secretary’s Resp. pass. deadline to it received the June the Court after arguments, In of his support via 2-4. had been transmitted facsimile.) response a Dec- In e-mail to his his June attached Mr. Padilla stated: from Mr. Padilla. his Declara- response, laration tion, a Man- that he is Mr. Padilla stated just post[ to be ]marked The letter has Community Affairs Analyst and already agement that has 16th and before Diego RO. Declaration at the (your Officer San receipt done Hardship at 1. Mr. Declaration reflects ration of Financial form. Padilla’s Last, in late he had met with the Declaration reflects Mr. Padilla’s appellant regarding no assertion that time did “[a]t [he] tell had explained BVA decision and appellant] that [he] handle [the appellate rights and the for him” appellant’s] appeal and that he procedures. Court’s Id. Mr. Padilla’s Dec- had no reason to that the appellant believe that, although laration further reflects did not NOA to submit his the Court in appellant had asked Mr. Padilla to file his 2002. Id. 2-3. appellant] completed “when [the In August September
Notes
notes regard, all of claimants to benefits under ment (Harold) the facts VA’s mislead [VA]”). ... is administered There laws whereas, undisputed ing conduct were in the before the Court nothing materials here, through Mr: Padilla’s Secretary, adjudica Padilla is an suggest Declaration, provided evidence reflect has M21-1, III, Next, Part personnel. tive no VA misconduct occurred ing that III, subchap- Chapter Subchapter informed, early as 11.18, deals paragraph ter which contains not file VA would E-mail, Fax Telephone, with “Use (Harold), Bailey behalf. See M21-1, Part Development.” for Claims 160 F.3d III, nothing in the III. There Sub.Ch. Moreover, telephone bills suggest materials before from to June 2002 do dated any devel part claims takes any conversation reflect substance Last, 11.18 paragraph appears opment. may have had with adjudicative where VA relate to instances Report are no of Contact forms there M21- personnel request information. See appear time it does not period; that same 11.18(a)(1)-(3). III, para. There Part that Mr. Padilla asserts the Court that reflects no evidence before duty Report of Con complete requested information that Mr. Padilla regard, although forms. In this tact Thus, the can appellant. from the Manual, Adjudication M21- Procedure VA duty to Padilla had a not conclude that Mr. (M21-1), 11.18(b), III, paragraph Part Form to his respect fill out VA 119s information received provides “[a]ll appellant. contacts with the com from a claimant must be Further, 6, 2002, e- Mr. Padilla’s June Report documented on pletely [a] mail, indicate erroneous may equivalent,” the or the Contact[ form]
1. The notes statements, copy repeated a of his indica- ed that he sent and the Tavares' case, notes that Court in further that Mr. tions all the hard facts in of by this Court. the letter was never filing his assisting Mr. Tavares in Padilla was under inapposite the issue con- This seems appeal. sideration, mailing proof of an as lack appeal does translate into lack credibil- my dispositive opinion, Mr. Although not 2. ity says who he mailed it. of the veteran any of conversa- did not document get even in the mail and lost Documents lost though apparent- even tions with Mr. Tavares Principi, e.g., Evans v. at this Court. See ly do the Veterans Benefits required to so (lost docu- Vet.App.41, 42 or misfiled Fugere Manual. Administration's M21-1 Cf. best, ment). At Mr. Tavares’ statement that Derwinski, (1990) (pro- Vet.App v. copy of an he mailed do not Manual that visions in M21-1 given simply a fact the nature neutral existing or clarify explain rule merely Court; i.e., whether issue before the law); McCormick statute have the force of applicable in this case because Mr. Gober, (2000) (substan- Vet.App 46-47 government Tavares lulled are en- provisions in M21-1 Manual tive Bailey, pass. See letting deadline Court). against mailing forceable I note that the