*1 to review and reconsider all of the evi- he denying appel-
dence because
lant’s motion reconsideration.
As to the appellant’s argument that
the Board erred him providing with doubt,
the benefit the Court is not
persuaded. Pursuant to 38 C.F.R. 3.102
(2011), any reasonable doubt must be re
solved in favor of “[w]hen
there is an approximate positive balance of negative regarding any evidence issue
material to the determination of a matter.” 5107(b). However,
See also 38 U.S.C.
because the Board determined that the law benefits,
precluded grant this rule Brown,
does not apply. See Sabonis v. (holding 429-30
where law and not dispositive, evidence is
the claim appeal should be denied or the
terminated legal because of lack of merit law).
or lack of entitlement under
III. CONCLUSION After consideration the appellant’s Kasold, Judge, opinion Chief filed concur- the Secretary’s pleadings, a re- ring in result. record, view of the the Court AFFIRMS April Board’s decision that
denied educational Chap- benefits under 30, 32,1606,
ters and 1607. SELLERS, Appellant,
Ivan R.
v. SHINSEKI, Secretary
Eric K. Affairs, Appellee.
Veterans
No. 08-1758. Appeals
United States
for Veterans Claims.
Argued Nov. 2011.
Decided June *2 Rosinski, Columbia,
Douglas J. South Carolina, Swiger, with whom James E. Centreville, Virginia, was on the brief for appellant. Cowden, B. James with whom Will A. Gunn, Counsel; Camp- General R. Randall bell, Counsel; Assistant General and Rich- Mayerick, Deputy ard Assistant General Counsel, D.C., all Washington, were on the brief for the appellee. KASOLD, Judge,
Before Chief SCHOELEN, Judges. HAGEL and SCHOELEN, Judge: Sellers, appellant, through Ivan R. 2, counsel, 2008, appeals April Board of (Board BVA) Appeals Veterans’ deci- in which sion the Board determined that a July rating decision did not con- (CUE). tain clear and unmistakable error (R.) Record at 18. The Board also con- firmed that the was not entitled to an effective date February earlier than 5, 2004, for service connection for retinitis (RP),1 as found pigmentosa 31, (RO) regional Houston VA office briefs, parties decision. Id. Both filed reply filed a brief. It was 1, later revealed that a June rating decision had found in the CUE rating decision and awarded a March 1988, effective date for service connection RP. R. A at 287-93. limited remand from this in a Board resulted 29, 2011, supplemental June Board deci- sion which the Board determined that rating the June 2004 decision was authen- tic, but a draft decision. See Ivan (June Sellers, BVA Pigmentosa” group clumping pigment, 1. "Retinitis is "a of dis- with contraction of eases, frequently hereditary, by pro- marked the field of vision.” Dorland’s Illustrated ..., (32d 2012) gressive response loss of retinal retinal ed. Dictionary [here- Medical vessels, atrophy, attenuation of the retinal inafter Dorland’s]. 2011). Thereafter, concluded, however, parties sup- filed examiner that “no pathology” R. at plemental appeal timely, briefs. This is existed. jurisdiction and the Court has to review private physician June diag- *3 pursuant
the Board’s decision to 88 U.S.C. appellant nosed the with RP. R. at 500. 7252(a) 7266(a). §§ and Because the physician The described the condition as finds that the June 2004 RO decision “a collection of disorders which are charac- January binds VA and the 2005 RO deci- blindness, by night peripheral terized visu- initio, sion is void ab the Court will set loss, and, stages al in the later of the aside the April disease, Board’s 2008 decision and problems, central vision color vi- part reverse in and affirm in part problems, sion reading and difficulties.” 29, 2011, Board’s June Id. The supplemental physician deci- advised that the condi- tion is almost always hereditary, sion. but that
the appellant specific had “no evidence problems similar in other members of [his] I. FACTS family.” Id. A. Claim for Entitlement to Service In March the appellant filed a
Connection for RP disability claim for entitlement to compen- sation for RP with cataracts. R. at 488- The duty served on active in 94. In the RO a rating issued Army the U.S. from 1966 to Oc- decision denying the claim. R. at 451-52. tober 1973. R. at 304. In his November explained The RO the relevant facts as history report, 1965 medical the appellant follows: history eye attested that he had a trou- examination], separation On veter- [the eyeglasses. ble and that he wore R. at complained of decreased peripheral an] 466-67, 481. The enlistment examination vision, vision night and decreased report appellant’s observed that the visual op[h]thalmological evaluation also refraction, acuity, pupil equality and reac- complaints showed in flashing lights tion, motility and ocular all appeared temporal the left field. No definite pa- normal R. condition. at 484. These im- thology physician] was found. [Private pressions were appel- confirmed reports progres- show has [the veteran] September separation lant’s exami- pigm[e]ntosa sive bilateral retinitis nation, which concluded that all visual has undergone bilateral ex- catara[c]t functions were normal. R. at 454. eye traction. There is no evidence trauma in service. days Nine after the appellant’s separa- examination, tion ex- ophthalmology R. at 452. The RO concluded amination was conducted he because appellant’s condition was a constitutional complained of flashing lights his left (CDA) developmental abnormality temporal field and a restricted field of aggravated that it was not in service. Id. vision. R. at 456. The examiner ob- September The 1988 Statement of the (SOC) served that the had vi- suffered explained appellant’s Case CDA, pigment sual field contraction and retinal RP was a and CDAs “can (RPE) epithelium “defects.”2 Id. by aggravation.”3 service-connected R. at pigmented layer 2. RPE is the outer of the of the iris. See Dorland’s lary margins optical part of the retina that extends from optic pupil- the entrance nerve concurring colleague briefly questions 3. Our VA RP a whether determination that is 447. To establish service connection asked for an address to which to send “a continued, aggravation, copy rating the RO decision and notification letter.” Id. actively must be shown that the con- [i]t specific was made worse some dition day, That according report same to VA portion military of the veteran’s service prepared by Canady, of contact Ms. she and made worse at a rate faster than the spoke appellant’s “verify with the wife to progression normal of the condition. dependent information in claim fold- [the] There is no evidence that the veteran’s R. ers.” at 390. On June any way aggravated by condition was in appellant’s representative responded to *4 military his to prog- service caused 21, 2004, Canady’s Ms. June e-mail and progression ress faster than his normal Denver, Colorado, provided a street ad- by military that service. dress for the Blinded Veterans Associa- tion. R. at 540. appellant perfect Id. The failed to an ap- peal and the became final. decision thus later, About a week appellant phoned Canady why Ms. to ask he hadn’t 2004, February
In
the appellant filed a
yet received his
R.
notification letter.
arguing
July
statement
that the
1988 RO
responded
might
320. She
that it
take a
premised upon
was
CUE. R. at
letter,
month to receive the
but that she
appellant’s
410-11. VA construed the
fil-
completed
payment
had
tabulation.
ing
request
reopen
as both a
claim
his
quoted
Id. She
the appellant a total award
request
July
and a
to revise the
$495,963.03,
figure of
but she
15,
stated that
decision because of CUE. R. at
figure
change
could
because it needed
B. The
Processing:
Houston RO’s Claim
to be reviewed
two other officials. Id.
February
September
2004 to
July
late
the appellant called
states that on June
Canady again
Ms.
to check on the status of
phone
he received a
call from RO
letter,
the notification
but she
said
she
Cynthia Canady,
official
who told him that
explain why
could not
it
delayed
had been
(1) the RO had made a decision on his
since her tabulations had been “corrected
request to
July
revise the
1988 RO deci-
Canady
and verified.”
Id. Ms.
advised
CUE;
sion based on
CUE was found in
$534,233.33
that his total award would be
decision; (3)
July
1988 RO
he would
$11,000
plus an
one-time car allowance.
receive a
1988 effective date with a
Id.
allowance”;
“one time car
he would
receive “a
During
letter in about a week to ten
September
the second week of
days stating this award.”
ble via in-service on behalf of the stand appellant by Cornyn's U.S. Senator John of- against congressionally pre- mandated Letter), (January Cornyn Inquiry fice sumption of We soundness. do not address appellant’s typewritten which contains the ac- question par- as it was not raised count of his interactions with the Houston RO necessary ties and is not to our decision. 14, 2004, through from June December 2004. R. at 319-21. the fact it despite explain bore two of the Please allow me to some con- signatures three needed for disbursement. I my Having cerns have about claim. Canady Id. Ms. said that she could not my initial claim appeal and its denied in explain why transmission had been de- 1988 and having my now been told re- layed help and that she could not cent appeal approved, you was can imag- appellant any further. Id. ine the my family excitement I and have
After again inquiring about the status of felt.... I my must admit excitement is week, the letter that same waning as the pass by my months Impairment directed to the Visual phone calls to Houston RO [the VIST (VIST) Services Team coordinator at the haven’t been coordinator] returned. Houston RO. R. at 320-21. The appellant
phoned the VIST coordinator who advised would look into it. R. at 321. There is no view advice from the that an appellant’s effective date and that he evidence that C. On October October 2004 to February 2005 Officer issue had arisen Houston RO’s Claim Processing: (DRO) *5 any 28, 2004, VA followup was conducted. regional Beverly RO Decision Re- regarding counsel, Cole sought based with the fices. What I my claim received two of the three nec- more review.... Why essary signatures stand it’s with the Decision Review Of- I have been informed that Rating [*] don’t understand is Board. and [*] yet [*] I also under- it is back to my long delay? claim is why Orleans, Louisiana, in New regarding the you I want to please write me a letter July 1988 RO decision. R. at 294-95. In detailing my actually where claim is and particular, Ms. sought guidance Cole on much longer how I should expect [to whether a March unpublished Gener- my before claim is finalized. wait] (GC) al opinion Counsel binding require whether it would the July 1988 RO R. at 386. There is no record evidence decision to be revised based on a finding of showing any RO responded official CUE. R. at 294. appellant’s During letter. the first week of December appellant
A regional counsel attorney staff re- and, again contacted the days RO several sponded request to Ms. on Cole’s Decem- later, an RO official appellant advised the 7, 2004, ber prefacing her response with that his file had been sent to New Orleans the statement that she opine could not on legal for a opinion. R. at 321. The official opinion whether the GC would determine July whether the opinion explained legal question 1988 RO con- that there was a CUE, explaining tained but that she could whether the effective date would portions” “advise on of the request. R. at legal and that counsel recom- attorney The staff also noted that date,” “us[ing] the earlier mended but that the “claims rating folder contains a deci- appellant money VA nevertheless owed the sion dated June 2004.” R. at 296. The they pay and that would him. In Id. not, however, attorney staff did comment second week of appel- December significance on the of the June 2004 RO lant in person visited the RO and was presence decision’s in the claims file. advised that the effective date for his eval- 5, 2004, 14, 2004, February uation would be the date appellant On November request of his July submitted a letter to the RO in which he CUE revise the stated: Id. decision. 14, 2004, Disagree- D. The Notice of rating Appellant’s December an
On RO Actions eye Subsequent examination ment and specialist solicited from the VA medical center as to 11, 2005, appellant, On March appellant’s RP. R. “[e]tiology/onset” through representative, his filed his NOD 14, 2005, January 377-79. At the with the 2005 RO decision. R. at examination, the examiner concluded that 3,May appellant 332. On filed a from advanced RP suffered setting fully statement forth more the rea- very significant peripheral “with loss of disagreed sons he with the RO’s denial of eyes vision both and small islands of [in] request his to revise the 1988 RO remaining eyes.” vision both R. at [in] R. at 286. decision based on CUE.5 325. The concluded that it was physician particular, appellant stated: likely that the retinitis
at least as as not I am undat- submitting copy ][ [an] while the pigmentosa began to manifest letter with rating ed VARO decision dat- military service. This is patient was 1, 2004, my ed June as evidence that based not on his own anecdotal effective be March date should experiences peripheral of reduced previous as this decision established. I actively night engaged vision while his contend this effective date is based on a military viewing duties.but also based on Error Clear Unmistakable eye sepa- records of exams when he was (CUE).... military Septem- from rated service Id. The June 2004 RO decision that the during ber of 1973 which time he made correspondence attached to his *6 for whether complaints.... similar As July found in the CUE 1988 RO decision pigmentosa aggravated the retinitis was granted and entitlement to service connec- service, military I by patient[’]s can- evaluation, tion for RP at a effective 100% that without to resolve issue resort 25,1988. March R. at 292. The June speculation.
mere 2004 RO decision set forth the reasons for Id. summary the decision and a of the evi- dence. R. at 290-91. The June 2004 RO 31, 2005, January
On the RO issued a granted special monthly decision also com- granting service connection for pensation and entitlement to automobile 5, 2004, February RP denying effective but and adaptive equipment. R. at 292-93. appellant’s request to find that That decision contained the signatures of July R. 1988 RO decision contained CUE. (1) Durkin, three officials: Susan who also at 352-71. The decision also awarded the (2) decision; signed January “L. special monthly entitlement to (3) Spurlock”; illegible signature and compensation, adapted housing, and auto- an purporting sign official “for” Paul R. at adaptive equipment. mobile and Black, Chief of the Houston RO.6 R. at January 371. The 2005 RO decision was 293. (1) Durkin, by signed two officials: Susan (2) Cole, Beverly the DRO who had The cover letter the appellant that sub-
sought
regional
from the
mitted with the
opinion
VA
June
RO decision was
R.
appellant’s representative
counsel October 2004.
371.
addressed to the
"coach,”
May
"sign[ed]
5. The
2005 statement was received
who
on behalf of the
Chief,
the RO on June
2005. R. at 286.
Veteran’s Service Center.” See Ivan
Sellers,
08-1758,
BVA
at 5.
29, 2011,
decision,
supplemental
its June
signer
the Board
that the third
a
found
Denver,
22, 2006,
R. at 287. The
appellant request-
Colorado.
let-
On June
undated,
hearing
“pend-
ed a
in connection with his
stamped
ter is
but contains the
ing appeal for effective date and Clear and
of Houston RO
Paul
signature
Chief
Black.
(CUE)
Error
Unmistakable
for retinitis
atR.
287-88. Unlike the June 2004 RO
pigmentosa.” R. at 154. At the Decem-
the cover letter refers
18, 2006, hearing
ber
held at the RO
appellant’s entitlement
to automobile and
Peters,
DRO Marian
testified
adaptive equipment.
On October
the
they
to see if
will listen
see ...
if
and
through
representative,
his
submitted his
will
they
you
listen and read what
have
Appeal
concerning
Substantive
to the Board. R. at
told me
the law that we
apply
should
... but I as a Decision
appealed
177-88. This document
the Au-
Review Officer cannot overrule what the
gust
Appeal
The Substantive
SOC.
says
front office
because a decision re-
May
does not mention the
2005 statement
prior
view officer
to me was the one that
or the June 2004 RO decision.
In re-
saying
signed
rating granting,
off on the
sponse to the appellant’s
Ap-
Substantive
it was a clear and unmistakable er-
a
peal,
Supplemental
RO issued
State-
....
promise you anything.
ror
I cannot
(SSOC)
April
ment of the Case
on
added).
(emphasis
R. at 83
2006. R. at
April
173-76. The
2006 SSOC
May
21, 2007,
does not mention the
2005 statement
a
On June
the RO issued
sec-
SSOC,
Leavitt,
R.
signed by
June 2004 RO decision.
at 173. ond
DRO Dexter
any rating
granted
7. The record does not contain
deci-
sion that
entitlement
to automobile
prior
adaptive equipment.
sion decided
to the June 2004 RO deci-
and
July
in which it reaffirmed its
1988 RO decision did not contain
Shinseki,
finding
July
that the
1988 RO decision did
See Sellers v.
No.
CUE.
(Jan.
2011).
appel-
not contain CUE. R. at 66-72. The
On June the filed his Appeal Notice of to this The appel- Court. Board [T]he *9 course of business as a decisional docu ant is considered a “decision” that binds § ment. See 38 U.S.C.A. 5104. This VA field offices and to discuss whether the document accompanied by is not a cover June 2004 RO decision constitutes such a letter, any nor does it contain September Briefing indication decision. 2011 Order Second, that it appel parties notified the Veteran of his at 1. were ordered to rights. § late See 38 presumption regu- C.F.R. 19.25 address whether the (2010). short, nothing larity there is to attached to the in which manner show that provided this document was to June 2004 RO approved decision was
274
(2011) (“A
par-
duly
Id. The
decision of a
constituted
appellant.
transmitted to the
rating agency ...
be final and bind
prepared
ties were also ordered to be
to
shall
Department
Au-
on all
offices of the
argument
ing
discuss at oral
whether an
field
to
38
Affairs as to conclusions based
gust
2011 revision
C.F.R. Veterans
3.103(c)(1) (2010)
imper-
§
have an
on the evidence on file at the time VA
would
applied
missible retroactive effect as
issues written
in accordance
notification
(emphasis
38
add
[§
this case. Id. at 2.
with
U.S.C.
] 5101.”
ed)).
must, among
Such notice
other
things,8
“provide[d]”
to the claimant
II. ANALYSIS
in
representative
and the claimant’s
A Binding
A.
RO Decision as
explanation
procedure
clude “an
of the
Prerequisite
Jurisdictional
review
obtaining
of the decision.” 38
5104(a).
§
U.S.C.
Introduction
pursuant
Once notice has been issued
to
ability to hear and decide
This Court’s
5104(a),
may
any
section
not effect
predicated upon
parties’ timely
cases is
decision,
sponte,
revisions to its
sua
on the
im
procedural requirements
adherence to
basis,9
factual
finding
same
without a
posed by
regulation.
statute and
See Best
5109A(a);
§
CUE. 38 U.S.C.
38 C.F.R.
Brown,
322,
(1997);
Vet.App.
v.
10
325
see
3.105(a) (revision
decisions)
3.104(a),
§§
Shinseki,
also Henderson ex rel. Henderson v.
(2011). Binding the RO at the time sec-
U.S. -,
1201-
S.Ct.
-
5104(a)
“pre-
tion
notice is issued
serves
(2011).
require
For an RO decision to be provide [questions] RO must notice in accordance with [J]urisdiction[al] alter[] 5104(a). 3.104(a) operation sys- section See 38 normal of our adversarial C.F.R. II.A.3, infra, adjudication 8. See section for a full discussion is based on a new set of facts is, effect, requirements. of these adjudication it new of a claim. dispute 38 U.S.C. 5108. There is no that no 9. Revisions to final decisions made on differ- finding any point such was made at in this pursuant finding ent facts be made to a must *10 case. evidence, of new and material and because
275
.
Jarrell,
system,
tem
that
are
Vet.App.
Under
Courts
Board decision.
20
at
Cf.
334;
Bernard,
generally
addressing
limited to
the
see also
277 pellate rights statutorily was erroneous. Ivan requirements, Sell mandated a claim ers, 10; BVA see v. Pentecost purposes does become final for of ap- (2002) (“Re 124,129 Principi, Vet.App. 16 thus, to the peal Court” and “there is no appropriate remedy versal is the when review”). final Board decision before us for absolutely plausible there is no for basis Ashley, In the Board mailed its decision and where BVA’s that decision decision to the claimant consistent with clearly light is erroneous in of the uncon 7104(e), section but the Board failed (ci in appellant’s troverted evidence favor” mail its decision to the appellant’s repre omitted)).12 tation Ashley, Vet.App. sentative. 2 at 67. addition, In our caselaw makes Rather, a party third “State Veterans —a clear that defects of decisional notice are Agent” relayed Claims representa — cured when the record demonstrates copy tive a previously of the decision the claimant and his representative actual mailed to the claimant. Id. at 65. The ly received notice of the decision.13 See in Ashley held that the defective Principi, Vet.App. Clark v. 62-64 transmission of the Board decision to the (2001) (holding “mailing that Board’s de representative party via a third was irrele fect was cured the appellant’s actual vant because record established that receipt of a copy of the June 1999 Board representative in fact received the de 2000”); decision in Hauck v. cf. (“There cision. Id. at 67 is no need for us Brown, 6 Vet.App. (stating to decide what the result have would been that notice defects are not overcome where had representative] [the claimant’s never there is no receipt). evidence actual decision.”). received the Similarly, where Contrary view, to the Secretary’s the issue a claimant demonstrates receipt actual whether directly VA transmitted decisional an RO decision and notice from either the notice to the claimant is moot where actual representative, RO or his ques there is no receipt is Ashley established. See v. Der tion whether such notice is effective and winski, (1992). 2 Vet.App. 65-67 In 5104(a) binding pursuant on VA to section deed, receipt actual serves to establish fi 3.104(a). nality purposes of appeal to this Court. case, See id. at (holding the date of pro the record at bar receipt actual was the date on which the ample appellant vides evidence that 7266(a) 120-day period began representative section and his received the June run); Brown, letter, Tablazon v. 2004 RO decision and notification as cf. that, (holding “where appellant’s May VA submitted with the has failed to procedurally comply with statement.14 On June an RO M21-1, III, 12. The pt para. maintains that a written no- also ch. 11.06. As where, above, however, rights appellate unnecessary tice of explained is these inconsisten- here, as a claimant a receives favorable deci- cies are irrelevant it where is established that Appellant’s Supp. sion. representative Br. at 12. The inclu- the claimant and his have re- appellate rights sion of VA’s written notice of ceived notice. form with the notification letter moots the therefore, appellant's argument; Secretary speculates ap- the Court 14. The also that the need pellant’s representative possession not resolve this issue. obtained during period these a documents of review M21-1, VI, Secretary argues pt. 13. The that the para. notification sanctioned ch. 2.05. However, proce- Secretary's Supp. letter bears inconsistencies with RO Br. at 6. the rec- dating filing provides theory. dures for the of final corre- ord no basis for this As the 5; spondence. Secretary's Supp. Secretary posits, procedure permits Br. at see 5104(a) (f). 3.103(b)(1), Accord- that a deci- tion official advised Secretary’s arguments *13 rendered and that written must be ingly, sion had been the forthcoming. R. at 320. In an findings notice was rejected and the Board’s on appellant’s representative the on email to issue must be reversed. 21, 2004, an RO official confirmed June Adjudicative and The Process 4. a had been rendered and that decision Rating Decision Content representative provide asked that the a Secretary argues The also that the June a of mailing copy address to which to send final, binding not a 2004 RO decision is “rating the decision and notification let- it not promulgated decision because was response, repre- the ter.” R. at 540. with consistent RO decision-authorization Denver, Colorado, the provided sentative Secretary re- procedure. repeatedly The organization. street address his service review, layer which fers to an additional prepared officials a notification let- Id. RO designee have occurred after the should ter, signature, secured the RO Chiefs and signed the of the RO the June 2004 Chief Denver, Colorado, affixed the street ad- required which to render RO was to the notification letter. R. at 287- dress merely rather binding, the decision than RO, May 88. In his 2005 statement to the Secretary’s Supp. Br. at “provisional[ ].” appellant the the June 2004 “[e]nclos[ed]” Specifically, citing provi- 10. to M21-1 RO with the notification letter decision sions, Secretary the maintains that a Colorado, Denver,
bearing the street ad- “post-determination required team” was provided by representative. dress the R. review the June 2004 RO decision and appellant at asserted that the 286-92. (a pay- calculate an “award” schedule of accompanying June 2004 RO decision and ments) before it could be released to the notification letter demonstrated that Secretary’s appellant Supp. and bind VA. July 1988 RO decision was “based on a words, Secretary Br. at In other 9. Error.” R. at Clear Unmistakable that the and his repre- asserts sentative could not be notified until after Thus, appel- we need not decide how the postdetermination review. lant received the June 2004 RO decision However, even the M21-1 assuming that directly represen- from the RO or from his provisions Secretary cited dictated tative the facts of this case estab- because here, provisions the RO’s conduct such provided lish that notice of the June do VA explicitly sequence RO in accordance with sec- decision establish (R. 540), representative rating approved claimant’s to review a sion was at and that any outstanding discuss issues rep- the notification letter is addressed to the or, rating per- with a official at the RO with (R. 540), resentative is clear evidence that RO, the Chief mission from outside the he did not obtain the June 2004 RO decision M21-1, VI, pt. para. RO. See ch. 2.05. The during period prepromulgation a review. however, Secretary ignores, prac- the RO's Moreover, sug- there is no record evidence tice, regulation, preparing with consistent gesting appellant's representative issuing notification letters at the time of Denver, traveled from his location in Colora- decisions, binding providing not when for a do, Houston, Texas, to conduct representative's rating review of a draft deci- in-person contemplated by review M21-1, Ill, pt. para. sion. See ch. procedure representative 11.09(a); 3.103(b)(1), (f), §§ 38 C.F.R. granted exemption from the Chief of the 3.104(a); M21-1, VI, pt. para. ch. 2.05. cf. M21-1, VI, pt. RO for offsite review. See ch. Thus, expressed the fact that the RO its intent 2, para. Secretary’s speculation 2.05. The appellant’s to send a notification letter to the must, therefore, rejected. days rating representative 20 deci- after adjudicative per- which RO tasks are represen- decision to the and his formed, they 5104(a) nor do demonstrate that an tative consistent with section generated “award” letter must be before (f). 3.103(b)(1), facts, In light of these can “rating decision” be transmitted to a the Court must hold that VA is bound Rather, claimant and bind VA. the cited the June 2004 RO decision. See 38 C.F.R. provisions merely M21-1 describe the 3.104(a). functions;
organization
adjudicative
of RO
(2) identify
procedures
approve
“rat-
follows, therefore,
It
that the Janu
*14
ing
granting
decisions”
entitlement
to ary 2005 RO decision is void ab initio.16
(3)
awards;
large retroactive
discuss the
January
The
2005 RO decision is not based
procedures to
general-
authorize “awards”
evidence,
finding
on a
of new and material
(4)
ly;
requirements
and
list
for notifying
5108,
§
predicated
see 38
nor is it
U.S.C.
decisions,
claimants of RO
including those
on a
in
finding of CUE
the June 2004 RO
(f).15
3.103(b),
by §
provided
provi-
These
decision,
3.105(a),
§
see 38 C.F.R.
nor did
sions fail
rating
to establish that
decisions
the RO
procedures
follow the established
delayed
produc-
must be
at the behest of
for revoking
prior
decision. See 38
ing RO “award” letters.
3.105(e).
§
C.F.R.
The RO thus lacked
contrast,
By
the record demonstrates
authority to render a
on
decision
the same
that the decisional content stipulations set
decision,
factual basis as the June 2004 RO
M21-1,
VI,
3,
forth in
pt.
paras.
ch.
3.08-
3.104(a),
§
see 38 C.F.R.
and the Board’s
3.30 are met
the June 2004 RO
jurisdiction
January
exercise of
over the
(1)
including the following:
organiza-
The
2005 RO
in
decision was likewise
excess of
tion of the decision into “narrative” and
7104(a),
§
statutory authority. 38 U.S.C.
sections;
“codesheet”
inclusion
“In-
(b), (c);
Jarrell,
Vet.App.
see also
at
troduction,” “Decision,” “Evidence,” “Rea- 334; Bernard, 4
Vet.App.
391.
Decision,”
sons for
and “References” sub-
sections;
specific
evaluation and
B. The Applicability
Purple
Heart
Moreover,
effective date. R. at 287-93.
M21-1,
VI,
3,
consistent with
pt.
para.
ch.
Introduction
2.04(c), the June 2004 RO decision itself
signatures
contains two
from rating spe-
peculiar
The
facts of this case raise
cialists, and a third from the designee of
provides
an issue that
an alternative basis
Center,
of the
Chief
Veterans Service
upon which to hold that the Board lacked
M21-1,
VI,
in
pt.
accordance with
ch.
jurisdiction to entertain the merits
para.
R.
3.07.
at 293.
January
Namely,
2005 RO decision:
Binding
5. The
June
RO Decision
process by
whether the
which the RO re
3.105(a)
§
and 38 C.F.R.
vised its June 2004 RO decision violates
above,
appellant’s procedural rights,
thus ren
As discussed
the June 2004
dering
January
RO
2005 RO decision void
product
decision is an authentic
MacKlem,
adjudicative process,
RO
it
con
ab initio. See
at 71
contains
decisions,
typical
rating
(finding
tent
of RO
that where an
decision was
and the
provided
EAP,
pursuant
notice of the June 2004 RO revised
to the invalid
M21-1,
I,
2.01-2.03;
pt.
paras.
Secretary's attempt
apply
pre-
15. See
ch.
16. The
M21-1,
Ill,
M21-1,
11.09(a);
pt.
para.
sumption
regularity
ch.
9.01;
V,
M21-1,
VI,
must,
therefore,
. pt.
para.
pt.
Secretary's
ch.
ch.
fail.
para.
Supp.
3.07.
Br. at 8.
initio);
in
any
involved
a claim.... VA
ab
Pur
issue
resulting decision was void
employees
more
who
Heart,
provide
will
one or
violate 38 C.F.R.
Heart,
the claimant to introduce
permit
is to
580 F.3d at
regulations. Purple
record,
any
available
sure,
person,
into the
the Board deter
1297. To be
as
ma-
which he or she considers
mined,
Heart
evidence
Purple
the EAP at issue in
any arguments
terial and
or contentions
case—the EAP
implicated
is not
applicable
to the facts and
August
respect
more
with
was first instituted
*15
may
perti-
which he or she
consider
the June
law
years
than two
after review of
Sellers,
....
of the
responsibility
nent
It is the
Ivan
BVA OS-
2004 RO decision.
However,
employees conducting
or
the
employee
question
at 10.
the
before
fully the issues and
Court,
hearings
explain
to
recognized,
the
is
as
Board
the submission of evidence
suggest
in
“EAP-like”
engaged
whether the RO
may
claimant
have overlooked
in
review the June 2004
which the
procedure
its
of
which, too,
advantage
be of
to the
decision,
of
and which would
would run afoul
position.
Heart.
claimant’s
principle
Purple
announced
Sellers,
08-1758, at 10. Such a
Ivan
BVA
Heart,
(citing
2. Law
evidence to show
entation
additional
Purple
At the time of the
Heart deci-
be continued at
benefits should
[the]
sion,
participate and
“right
a claimant’s
to
(citing
level.” Id.
38 C.F.R.
present
their
by pro-
principally protected
respond” was
3.105(e), (f),
Federal
(g)).
§
The
Circuit
3.103,
§
which stated:
visions of
protections
procedural
observed that these
3.103(a)
policy. Every
§
Statement
by the EAP:
were threatened
notice
right
claimant has the
to written
the veteran does
[B]y
procedure
the new
claim,
on his
her
of the decision made
hearing
presence
a
in the
of the
not have
hearing,
right
to a
and the
right
final decisional
persons who now have
obli-
... and it is the
representation
decisions.
It is not
authority for [RO]
a claimant in
gation of the
to assist
VA
no
disputed
opportunity
that there is
pertinent
developing the facts
evidence
“which
provide
additional
The
of this section
provisions
claim....
3.103(c)(2),
§
advantage,”
be of
would
relief,
to all claims for benefits and
apply
when the
that the veteran is
told
thereon,
pur-
within the
and decisions
that meets the
makes an award
[RO]
part
view of this
procedure.
& P
criteria of this new C
“Do not
[RO]:
The
instructs
[EAP]
3.103(c)(1).
rating deci-
[large award]
offer these
Upon request,
§
a claimant
any
representative
veteran’s
any time on
sions to
hearing
is entitled to a
3.103(c)(1)
August
§
review until the C & P Service makes a
fective
no
longer guaranteed
final
regarding
pro-
hearing
determination
before “one
or more employees
original
who have
de-
priety of the decision.”
authority”
terminative
over the issues to
procedure
The new
provide
does not
Instead,
the hearing.
decided at
claim-
“in person”
provided by
interaction
ants were
hearing
entitled to a
before
3.103(c)(2),
§
opportunity
and no
to re-
“one or
employees
more
office
VA
spond to the
the deciding
concerns of
having original jurisdiction over the claim
official,
authority
whose decisional
is re-
hearing
conduct the
and to be responsi-
moved
from
See Fast Letter
[RO].
ble for establishment
preservation
(“If
07-
2at
the & PC
determines
the hearing
Compare
record.”
38 C.F.R.
the decision
improper,
provide
is
it will
3.103(c)(1)
(2011),
with 38 C.F.R.
action.”);
specific corrective
Fast Letter
3.103(c)(1)(2010).17
regulatory
pro-
(“C
08-
at 3
& P instructions are
vision was amended while the appellant’s
part
considered
pre-decisional
claim
pending
before this Court. See
process and are not to be included in the
Governing
Rules
Hearings Before the
permanent record----[Representatives
Jurisdiction,
Agency
Original
76 Fed.
will be permitted
opportunity
to re-
52,572-73.
Reg. at
view
rating
the draft
but only
At oral argument,
Secretary
con
after the file is returned from C & P
ceded that
the amendment did not alter
*16
corrections,
Service and
if necessary, are
responsibilities
the RO’s
respect
with
to
it.”).
made to
The
P
C & Service’s
hearings.
conduct of
Given this con
determination is then
issued
the name
cession, the Court need not inquire into
[RO],
of the
and the veteran
no way
has
whether VA’s
impair
amendment “would
knowing
of
persuaded
what
an unidenti-
rights
party
acted,”
possessed when he
fied decision-maker to reduce the award
having
impermissible
thus
“an
retroactive
by
that was made
the persons before
18
Shinseki,
effect.”
Ervin v.
24 Vet.App.
whom the hearing was held.
(citing
Landgraf v. USI
Heart,
Purple
December
the
at
3.104(a).19
§
suant to
least seven times to learn of the status of
similarly
The Court cannot tolerate a
a
including sending
his
letter to
decision—
opaque, obfuscatory
process
revision
in
given
the
of the RO—but was
nei-
Chief
merely
this case
because VA saw fit to
adequate explanation,
ther an
nor an audi-
agency
origi-
confine its conduct to the
by
ence
a final
R. at 320-
decisionmaker.
Indeed,
jurisdiction.
right
nal
the
to a
peculiarly,
386. Even more
after the
hearing
persons
“original
with
before
de-
in
appellant formally requested
hearing
a
authority”
terminative
in
guaranteed
June
DRO Marian Peters confessed
3.103(c)(1),
(1)
§
right
a
on which the Federal
hearing
would not be held
relied,
explicitly
Heart
Purple
final
Circuit
persons
decisionmaking
with
authori-
(2)
at
ty;
initially
even
580 F.3d
is not limited to cases
though she did
(R.
approve
operates
the June 2004 RO
at which the decisionmaker
outside
decision
3.103(c)(1)
293),
it;
§
prevent
she worked to
revision of
the RO. To read
as the Board
(or both)
challenged pursuant
subject
19. The EAP was
to 38
553 of title 5
refers is
to
provides
judicial
§
U.S.C.
which
for direct re-
review. Such review
be in ac-
shall
Secretary.
Purple
chapter
may
view
title
of actions of the
cordance with
5 and
Heart,
("An
sought only
ple
Accordingly,
Heart.
consistent with
sistent with
opinion.
MacKlem,
24 Vet.App. at
the Janu
ary
decision is void ab initio and
SCHOELEN, Judge,
opinion
filed the
April
2008 Board
relying
on
KASOLD,
Judge,
Court.
Chief
filed
*18
2005
decision must be set
opinion concurring
an
in the result.
in
aside as “not
accordance with law.” Id.
Brown,
413,
(citing Brown
Vet.App.
v.
5
KASOLD,
Judge, concurring
Chief
in
(1993));
Derwinski,
422
v.
1 the result:
cf. Schafrath
(An
(1991)
589,
Vet.App.
595-96
“ultra
I agree
my colleagues
with
that Mr.
vires action of
Chairman ‘must
[the Board]
Sellers is entitled
an effective date
it
though
treated as
had never been
benefits for his RP disease earlier than
” (emphasis
taken.’
in original) (citing In re
2004,
5,
February
albeit for different rea-
Smith,
492,
Agreement
Fee
1 Vet.App.
sons.
curiam))).
remand,
(per
496
On
Specifically,
agree
I cannot
with the ma-
placed
must therefore be
in re
ceipt
jority’s holding
clearly
of the favorable and effective June
that
the Board
MacKlem,
2004 RO decision. See
24 Vet.
in
supplemental
finding20
erred
its
2011
supplemental
processing
20. The Board’s 2011
Mr.
decision
focuses on the
Sellers's
request
request
was rendered at the
of the Court and
for revision.
release,
M21-1,
their
decision was not
decisions before
see
that the June 2004 RO
VI,
2,
2.05,
cited
binding
pt.
para.
it
not issued to Mr.
ch.
but
cases
because was
support
majority’s
inap
view are
Sellers in the normal course of business.
that,
posite.
specifically, Ashley
because Mr. Sell-
More
majority
hold
representative
actually re-
found defects in transmission irrele
ers and his
Clark
2004 RO decision and a vant to veterans’ assertions that their No
ceived
June
letter,
Appeal
untimely;
they
that
were
do
notification
decision was bind-
tices of
But,
it.
that a decision never
ing regardless of how he received
not find
transmitted
by major-
the “notification letter” cited
in the normal course of business is bind
Sellers,
Derwinski, 2
ity
ing.
Ashley
is not addressed to Mr.
is
See
v.
(1992) (claimant
undated, purportedly
arguing
awards Mr. Sellers
that “the
120-day filing period
...
purchasing
begin
financial assistance
auto-
did not
mobile,
...,
and does not mention an award of
run
because the
failed to
B[oard]
Moreover,
statutory
mail a
obligation
benefits based on CUE.
the meet
its
only
copy
by
claims file
contains the
sent
copy
representa
of the decision to her
tive”);
Principi,
Mr. Sellers. There is no indication that
also
v.
see
Clark
Vet.
(2001) (claimant
App.
arguing
this notification was ever issued
that
Secretary or that
it
of Appeal
timely
related
June
his Notice
was
because
denying
2004 RO decision
the Board
to the wrong
CUE.
sent
address).
stated,
Succinctly
finding
the Board’s
Accordingly,
the June 2004 RO decision was not
I would affirm the 2011
final because it was not issued in the nor
supplemental finding of the Board that the
plausible
mal course of
is
business
based
2004 RO decision was not issued
on the
I
proceedings
record
and do not
normal course of business and therefore is
“firm
binding
Secretary.
have a
conviction” that
the Board
not
on the
finding.
erred in that
See 38 U.S.C.
hand,
On the other
because the facts
7261(a)(4);
Derwinski,
v.
Gilbert
Vet.
support
found
the Board do not
its 2008
(“
App.
‘A finding
“clearly
is
decision that the 1988 RO
decision did
reviewing
erroneous” when ...
court
CUE, I
contain
would reverse the 2008
on the entire evidence is left with the
Specifically,
Board decision.
the Board
definite
firm
conviction that a mistake
that Mr.
found
Sellers entered service with
” (quoting
has been committed.’
United
no indication that he
Although
had RP.
Co.,
States v.
Gypsum
U.S.
333 U.S.
separation
Mr. Sellers’s
examination also
(1948))).
reverse it—which majority’s in the result of the deci
curring Nicholson, Vet.App. v. Joyce
sion. See (Board decisions on CUE 42-43 “arbitrary, are reviewed under the
motions discretion, or other
capricious, an abuse of law”
wise not in accordance with stan Brown,
dard); Fugo Vet.App. v. 43- (1993) (demonstrating requires CUE
showing that the outcome would have been error);
manifestly different but for the see Principi, v.
also Gutierrez (2004) (“[R]eversal the appropriate is
remedy only permissible when the view of contrary
the evidence is to the Board’s
decision.”).22 ACEVEDO, Appellant,
Bernadine
v. SHINSEKI, Secretary
Eric K. Affairs, Appellee.
Veterans
No. 10-3402. Appeals
United States Court of
for Veterans Claims.
Argued April 2012.
Decided (Fed.Cir.2003) differentiating (holding 22. One effect of a Board rever- that CUE brought may underlying sal and remand based on CUE in the 1988 after an not issue opposed adjudicated by noting decision as to a Board reversal and has been a court and permitting reinstatement of the 2004 RO decision is that such action “would allow a predicated reversal the Court on CUE in lower tribunal to review the decision of a tribunal”) 3.104(a), permit higher §§ an earlier decision does further with 38 C.F.R. 3.105(a) (permitting that earlier decision the Secre- of final deci- revision of revision CUE). tary. Compare Principi, Winsett v. 341 F.3d sions based on notes the June 2004 briefs, lant’s initial and reply prepared by document was not of record at the time time, attorney at his failed to mention April Board’s 2008 decision. This the June 2004 RO decision. The record by document was first submitted did not include the June 2004 RO decision Veteran in June 2005. This document documents, any or related and it lacked appears to be a by document created several appeal, documents critical to the RO, signed by and shows that it was including the August 2005 SOC and the (a personnel three RO rating specialist, complete January 2005 RO decision. officer, a decision review and a “coach” 25, 2011, January Chief, On (signing the Court issued a on behalf Veter- Center)), memorandum affirming an’s Service who determined April Board’s decision that that the which denied pigmento- service connection for the appellant regular retinitis in the course sa, was CUE. business as a decisional document. In this regard, the has Veteran stated that Sellers, Ivan BVA at 5. The he was advised that his claim had been ultimately Board concluded that the June granted during telephone conversations 2004 RO decision was authentic. Id. at 6. personnel with RO in June 2004. See The Board next found that the June letters, Veteran’s in January received 2004 RO decision promulgated was not August 2005 and 2010. In his pursuant to the EAP. Id. at 9. The Board 2005 letter Congressman, his he explained first that the EAP at issue in clearly expressed frustration that an and Purple MacKlem Heart was not in award letter had not been received. effect at the time the June 2004 RO deci- The fact that VA did not transmit sion was revised. Id. at 10. The Board provisional June 2004 document to the also nothing found that indicated that the Veteran in the normal course of business June 2004 RO subject decision was to an is a clear indication that VA did not process. “EAP-like” Id. The Board fur- intend the June 2004 document to be a ther observed that there was no basis to final decision. show that the sought RO obtained determination from the Compensation and Id. at 10. Pension Service or other decisionmaker ultimately Board concluded that the outside the RO. Id. at 11. On the con- June 2004 apparently RO decision “was trary, according to the Board: written up as a ... decisional docu- draft The evidence shows that the Veteran’s ment,” review, subject and was to further adjudicated claim was only by per- RO including by review informed advisory le- sonnel, specifically, the January 2005 (em- gal opinions. and medical at 11 Id. grant of his claim signed by two RO phasis original). The Board also noted personnel. He is therefore not shown to that receipt of incorrect information from have person” been denied “in interaction personnel upon alone is not a basis officials, deciding with the required as which to award benefits. Id. at 3.103(c)(2). by 38 C.F.R. History G. Procedural on Appeal: Id. Supplemental Briefing on the The Board also found that the June 2004 June 2004 RO Decision regu- decision was not received “in the lar course of business” appellant: September required This document does not bear a the parties supplemental date to submit brief- indication, stamp, any other ing jurisdictional to show on two questions raised Veteran, that it was ever supplemental mailed to the Board decision. First, nor does the Veteran parties required contend[ ] he were to articu- regular received this document in the late what transmission from VA to a claim-