*1 February and the or- granted, to this is prior decisions of this Court dential the is revoked. It is decision, dismissing appeal der but that it is Henderson Court’s further or forfeiture subject to waiver Secretary. that, any dispute if ORDERED there is foregoing, preparation it is or content of the

Upon consideration of as RBA, in appellant King, not later than ORDERED, the above- sponte, sua order, days after the date of this shall for the cases are consolidated captioned appropriate file an motion with the Court. addressing whether purpose sole subject equita- 120-day filing period is and, so, if whether the circum- tolling,

ble equitable in each case warrant toll- stances It further ing. Bove, in No. appeal ORDERED that the 08-1468, reinstated, July appeal motion to dismiss this CASTELLANO, Margreit Appellant, is denied. It is further v. Secretary, that the not later ORDERED order, days than 30 after the date of this SHINSEKI, Secretary Eric K. certifying appel file a notice that the shall Affairs, Appellee. Veterans with a copy lant in Bove was served No. 09-3386. (RBA), agency before the U.S. Vet. record 10(a). App. R. It is further Appeals United States Court for Veterans Claims. that, if dispute ORDERED arises RBA, or content of the preparation Argued June 2011. Bove, appellant not later than 14 Decided Dec. RBA, days after service of the shall file an Court, appropriate motion with the U.S. 10(b). R. It is further Rasheed, appeal

ORDERED that the 09-3758, untimely No. is DISMISSED for filing. It is further Secretary, not later

ORDERED that order, days than after the date of this certifying appel- shall file a notice 10-2139, No. was served Lopez, lant copy with a of the RBA. It is further that, any dispute if there is ORDERED preparation as to the or content of the RBA, Lopez, not later appellant RBA, days

than 14 after service of the appropriate shall file an motion It is further Court. motion appellant’s ORDERED that the 10-2622, King, No. for reconsideration *2 Schoelen, J., filed concurring opinion. *3 Sink, Michael Den-

Norton Cutler and

ver, Colorado, appellant. for the Vichich,

Mark D. A. whom Will Gunn, Counsel; General R. Camp- Randall bell, Counsel; Assistant General and Quinn, Deputy David L. Assistant General Counsel, brief, Washing- were on the all of ton, D.C., appellee. for the KASOLD, Judge, Before Chief and SCHOELEN, Judges. DAVIS and KASOLD, Judge: Chief Castellano, Margreit surviving spouse of Castellano, appeals veteran Frederick C. through part July counsel that of a Appeals decision of the Board of Veterans’ (Board) (1) that denied entitlement to ser- (2) disorder, bipolar vice connection for disease, service connection for Alzheimer’s (3) (SMC) special monthly compensation (4) 1114(s), pursuant to 38 U.S.C. disability rating total based on individual (TDIU). unemployability Mrs. Castellano (1) contends that the Board erred in find- ing that a June VA medical re- port private nursing home records were not considered evidence Mr. Castellano’s claims file at the date of his by considering her argu- remand, by ments on as evidenced reissuing, large part, Board’s same statement of reasons or bases issued previous Board decision had been re- Court, denying manded Secretary her claims. The disputes granted these ber he was service connec arguments. condition, tion for his mental labeled at “psychoneurosis.” time as Record herein, For the reasons stated we hold (R.) time, at 4196. Over Mr. Castellano’s at the time Mrs. Castellano filed variously, condition was labeled including claim, authorized, her inter disorder,” “personality “post-traumatic alia, “[r]eports hospitalization, treat- (PTSD), stress disorder” depres “mixed ment or examinations authorized VA” anxiety sion and with psychotic symp to be deemed included in file at the toms,” disorder,” “bipolar “anxiety re date the veteran’s death “even if such *4 1990s, action.” In the Mr. Castellano also reports writing are not reduced to or are diagnosed with Alzheimer’s disease physically not placed in file until after (also referred to the record as “dementia” Adjudication death,” VA Procedures Man- ). 18, 2000, 1 On May Mr. Castellano (M21-1), 5.06(c) VI, ual pt. para. death, died. At the time of his he had (2) 8, 2000), (May this deemed inclusion pending adjudication increased-rating was a right substantive that could not be (the anxiety claim for regional reaction law, eliminated except accordance with (RO’s) office’s label for psychoneurosis (3) right this substantive was not eliminat- condition) and a claim for disability com ed properly until after Mrs. Castellano disease, SMC, pensation for Alzheimer’s her filed claim and that change did not TDIU, psychiatric and a disorder other (4) operate retroactively, and Mrs. Castel- than anxiety reaction. lano was entitled to the benefit of this hold, alia, Mrs. right. We also inter Castellano filed an accrued that— benefits claim on although the June 2000. Her claim per prohibit- Board is se relying September ed from denied in a many of the same Board deci- sion, reasons or but Mrs. supporting previous appealed. bases Castellano Pur- (JMR), joint Board decision that suant to a motion for addressed the same remand her claim adju- matters but was remanded for further had been remanded for fur- adjudication ther dication of all except Board matters entitlement ap- decision on —a peal nevertheless must accrued benefits for her claim stand on its own husband’s (whether statement of increased benefits for reasons bases service-connect- reaction, anxiety ed reiterating what had been which Mrs. pre- stated Castellano not) explicitly vious abandoned. Her Board decision or claim was de- otherwise again nied in a December adequately address the 2007 Board deci- issues raised be- sion, but subsequently low. Given these remanded holdings and based on appeal law, pursuant the record on Court to another JMR. The 2009 applicable alia, Board part appeal, of the decision here on inter appeal Board decision on (1) will be set and the found that a June VA medical aside matters remanded for further of treatment or adjudication consistent examination was prepared after Mr. this decision. Castellano’s death and therefore could not be deemed in his file I. FACTS death, (2) the date of his private noted that Mr. Castellano duty nursing served on active home records also could not be April from 1943 to October 1944. In Octo considered in his file at the date of his (dementia)” 1. "Alzheimer disease is defined planning, organizing, disturbed and abstract abilities, general cognitive as “a loss of in- thinking abilities.” Dorland's Illustrated Dictionary (31st cluding impairment memory, 2007). well ... as Medical ed. (3) death, has failed to demonstrate the maintained its denial of Castellano disorder, relevancy private nursing home rec- Alzheimer’s bipolar benefits for ords, substantially complied disease, TDIU, the Board reiterating many SMC and Stegall, with its remand duties under supporting bases of the same reasons or plausibly findings rendered the Board the December 2007 Board decision disease, disorder, bipolar on Alzheimer’s adjudica- further had been remanded for SMC, and TDIU. appeal tion. This followed. III. DISCUSSION

II. PARTIES’ARGUMENTS A. Evidence the File argues that appeal, On Mrs. Castellano at Date of Death opinion and the June VA medical nursing home records should have private below, agree with As discussed we Mrs. in Mr. been deemed the Board to be claim, at the time of her Castellano claims file at the date his Castellano’s authorized certain docu- pursuant the 1992 to be deemed in the file at the date ments *5 were sub (2) M21-1 that she asserts declared death, of the veteran’s and she is enti- Brown, by v. 4 Hayes stantive law Vet. the benefit of that authorization. tled to (1993). 353, App. argues 360 She also Generally 1. APA and the M21-1 (1) appeal the 2009 Board decision on The Act Administrative Procedure arguments her on re failed to address (APA) agencies mandates that Federal reprinted mand and its statement of rea rules, their substantive publish decision, previous sons or bases from a thereof, Regis- amendments in the Federal duty read violating Stegall therefore its to ter, provide notice to affected citizens remanded, judicate Stegall the matters see opportunity and the to comment. See 5 (2) West, 268, (1998), Vet.App. v. 11 271 553; Ruiz, 552, §§ Morton v. 415 U.S.C. applying erred in not the benefit of the 199, 232, 1055, 94 39 U.S. S.Ct. L.Ed.2d Mr. Al finding doubt and Castellano’s (1974) (APA provides 270 that “administra- by aggravated zheimer’s disease not his policies affecting rights tive individual (3) disorder, anxiety service-connected obligations promulgated pursuant applying erred in not the benefit of the procedures certain stated so as to avoid that Mr. had finding doubt and Castellano inherently arbitrary unpub- nature of (4) disorder, deny in bipolar no erred determinations”). Although lished ad hoc TDIU, ing which are inextrica SMC and policy comply voluntarily it was VA bly intertwined with the other matters. APA since VA was not otherwise Secretary The contends that the M21-1 required by comply law to with the APA provisions on relied Mrs. Castellano until the Veterans’ Judicial Review Act (VJRA) May prior September were to her became effective in revised claim, Compare and that she therefore was not enti- Administrative Procedure (1966) Act, application prior (excluding tled to the of the version. Pub.L. No. 89-554 Moreover, from argues plau- relating he that the Board matters to “benefits” 2000, APA), Act, sibly determined that the June with Veterans’ Judicial Review opinion prepared (subjecting medical after Pub.L. No. 100-687 VA VA APA); Mr. and therefore was to the see also 38 C.F.R. 1.12 Castellano’s (1972) (“It constructively policy Department in the file at the date of is the public other of Veterans Affairs to afford the his death. As to Mrs. Castellano’s notice, issues, in the Secretary argues general published that Mrs. Federal

151 Moreover, proposed regulatory develop- pro substantive rules Register, ment, mulgated prior statutory require opportunity participate and an comply ment that VA with the APA re regulatory development accordance binding Secretary main on the until with the of the Administrative properly are revoked or amended. See (APA). Procedure Act All written com- Fugere, 1 Vet.App. (noting 110 that a public ments received will be available for substantive rule not be un rescinded Thus, inspection.”). passage until “ til ‘published has notice of VJRA, regulations VA rules and lived it, his intention to rescind invited com isolation,” “splendid generally uncon- ment, put public that comment ... on the by judicial strained review. Brown v. record, published a reasoned and re Gardner, 115 U.S. S.Ct. explanation viewable of his decision to re (1994); L.Ed.2d see Pub.L. 100- ” (quoting scind Nat’l Fed’n [it].’ Wildlife (permitting judicial review (D.D.C. Watt, v. 571 F.Supp. Appeals Court and U.S. Court of 1983))). procedural This is consistent with (Federal Circuit)). the Federal Circuit regularity play required and basic fair adjudicating veterans’ claims. See Thur Given this unique history, is not a Brown, ber v. surprise that substantive promulgat rules (holding particular veterans are might

ed before the APA be contained in “procedural regularity entitled to and basic directive, letter, the M21-1 or a or other play” adjudication fair in the of their Brown, document. See Buzinski v. 6 Vet. *6 claims); 1 Fugere, Vet.App. at 108 (1994) 360, App. (noting 369 that Rank v. (“ rights ‘Where the of are af individuals (9th Nimmo, 692, Cir.1982), 677 F.2d 698 fected, upon agencies it is incumbent handbooks, circulars, held “VA and ” procedures.’ (quoting follow their own may manuals” have the “force and effect of 1055)).2 Morton, 235, 415 at 94 U.S. S.Ct. rules); law” if they prescribe substantive Derwinski, 103, Fugere Vet.App. v. 1 107 course, Of it is now clear that a (1990) (the placement proce of a rule “in a properly promulgated regulation trumps disguise dural manual cannot its true na provision an M21-1 or other VA directive rule”), ture as a substantive aff'd, 972 F.2d plainly is erroneous or inconsistent (Fed.Cir.1992). 331 regulation. Compare with Smith v. Shin proce adjudicating 2. We also have held that substantive when See Mor veterans’ claims. ton, 235, ("Where dural favorable to veteran and 415 U.S. at 94 S.Ct. 1055 affected, Regula rights contained outside the Code of Federal it individuals are binding Secretary upon agencies tions are on the even if incumbent to follow their own promulgated required by procedures. after VA was law to even the inter This is so where comply procedures possibly rigorous with the APA. See McCormick v. Gob- nal are more er, 39, (2000) Vet.App. (requiring required.”); 14 49 than otherwise would be Thur Shinseki, ber, Secretary request copies supra; of SMRs and VA but see Guerra v. 642 1046, (Fed.Cir.2011) (acknowl pursuant medical records to the substantive F.3d 1050-51 Development provi edging Secretary's position "VBA Letter Immediate that the M21-1 is " West, 1999); primarily sions” from Patton v. 12 Vet. 'an internal manual to con used 272, App. (stating vey guidance adjudicators 282 that the Board to VA [and] ignore provisions beyond "cannot of the Manual intended to establish substantive rules " regulations.’ M21-1 ... that are favorable to a veteran” those contained in statutes 66,218 27, (Nov. applying (quoting Fed.Reg. an altered substantive manual 72 1997). Peake, 1168, 2007))); provision holdings 1197 from These simi Haas v. 525 F.3d Shinseki, (Fed.Cir.2008) (same); larly process stem from the fair notion that v. Fournier 480, (2010) (same). Secretary policies Vet.App. must adhere to own his 23 487-88 (Fed.Cir.2011) 1985) (“Evidence selci, ‘in (Sept. F.3d file’ will be (“VA interpretations regulations its own if interpreted following to include the even Adjudication in Manual its Procedures reports writing such are not reduced to ‘controlling’ long are as as [M21-1] physically placed are not file until after ‘plainly are not erroneous or inconsistent Reports hospitalization, death: ... regulation.’ with the v. (citing Thun treatment or examinations authorized (Fed.Cir. Shinseki, 572 F.3d VA.”). 2009) Robbins, (quoting Auer v. 519 U.S. Hayes, recognized this Court 117 S.Ct. 137 L.Ed.2d 79 scope confusion the full some of sec Haas, (1997)))), (holding 525 F.3d at 1197 tion 5121 related evidence regulation that an M21-1 inconsistent with file at date of noted that claimant), rights confers no and Four “the wide has latitude estab nier, Vet.App. (discussing at 487-88 lishing departmental policy as to what Haas), Brown, Vet.App. with Cohen v. post-date-of-death evidence be consid (1997)(“Where 128,139 the Manual M21-1 360; Hyatt ered.” 4 see also regulation overlap, and the the Manual (Fed.Cir. Shinseki, v. 566 F.3d M21-1 .... except is irrelevant where the 2009) (noting Hayes, that the decision in Manual is more favorable to the claimant.”). supra, on a “perceived rested conflict be (a) (c) 5121,” tween subsections Applicable Substantive Law perceived but conflict was re solved with an amended pro Reports a. VA-Authorized Treatment 2002). mulgated November The Court At the time Mrs. Castellano filed regulatory also discussed her claim for accrued benefits on June and noted that section applied “only 2000, the law generally restricted the evi the file at date of death and dence that could be adju considered when and, not, by the death certificate does its dicating an accrued benefits claim to that *7 terms, contemplate the submission of which was “in the file at date of [veteran’s] post-death Vet.App. other evidence.” 4 at Exercising death.” 38 U.S.C. his that, 358-59. The Court concluded “[t]o authority promulgate appropriate to rules the extent Manual the[] law, however, carrying to out the the Sec post-date-of-death affect what retary “[r]eports hospitaliza authorized considered, they have the force of tion, treatment or examinations authorized law as affect a right.” substantive by VA” “VA-authorized re [hereinafter (quoting Fugere, at 360 1 Vet. ports of be deemed treatment”] 107) (internal App. quotation marks reports file at date of death “even if such omitted). The Court also noted that the writing phys are not reduced to or are not Secretary might clarifying consider his ically placed file until after death.”3 5.25(a) policy M21-1, VI, regard with to what evidence sub pt. para. (Sept. 1992). mitted after death could be This authorization dates back to at considered adjudicating when mandatory compliance least before accrued benefits M21-1, with the APA. para. See 56.24 claim. folders, provision reports autopsy

3. This also authorized de- tient service treatment records, partment reports hospitaliza- by VAof made VA on the date of death to be tion, reports of treatment or examinations deemed included in the file at date of death. M21-1, VI, 5.25(a) 21, 1992). including outpa- pt. VA para. (Sept. medical centers those in (5) VA[;] the M21-1 Although changed by was Reports of autopsy death, May (prior by to the date Mrs. made VA on the Castel- date of claim), lano filed her changes made M21-1, 5.06(c) VI, with pt. para. (May regard with reports VA-authorized of 2000), to wit:

treatment being deemed included in the c. Evidence in File at Date of cosmetic, file at date of death were such Death.... Evidence ‘in file’ includes that notice and comment were not re- following, even if reports such are quired. Fugere, Vet.App. See at 110.4 writing reduced to or are not physi- below, As illustrated this language was (1) cally placed in file until after death: 5.06(c), paragraph moved to only a records; (2) department Service Reports phrase (3) redundant being Specifi- removed. of VA hospitalization; Reports of cally, phrase “reports treatment, hospitalization, of treatment or or examina- (4) VA; examinations VA medical tions authorized centers includ- Reports ing folders,” autopsy those in made outpatient treatment VA on the date of removed; death. it was redundant with the language authorizing reports VA of treat- Accordingly, at the time Mrs. Castellano ment or examination to be deemed includ- (1) claim, filed her deemed ed in the file at the date of death. Com- reports VA-authorized of treatment to be M21-1, VI, 5.25(a) pare pt. para. (Sept. included Mr. Castellano’s claims file at 1992) added), (emphasis to wit: (2) the date of his this deemed inclusion promul- substantive rule a. Evidence in File at Date of Death. gated prior pursuant to the APA and Evidence ‘in file’ the following, includes Secretary’s statutory authority pro- even if such reports are not reduced to (3) rules, mulgate and Mrs. Castellano was

writing or are not physically placed in entitled to the benefit of this substantive (1) file until after depart- death: Service rule. records; ment Reports of hospi- VA b. Evidence Identifying, Verifying, talization; Reports treatment or or Corroborating the Death examinations in VA medical center in- cluding Certificate5 outpatient those in treatment folders; Reports hospitalization, May contrast 2000 cos treatment, or 5.25(a) examinations authorized metic changes made to paragraph Secretary ultimately 5.25(b) 4. The promulgated reg- under of the 1992 M21-1. *8 ulation that limited the evidence that could be Appellant's (noting See Brief at 11-12 that the included in the file at date of death to docu- doctor’s serves to "corroborate already possession, ments in VA's but he did verify information in [Mr. file at Castellano’s] not do this until November well death,” citing Hayes’s the date of his discus- after Mrs. Castellano submitted her claim. 5.25(b), paragraph arguing sion of Benefits, See Evidence for Accrued 67 Fed. nursing home records should also be con- 65,707 (Oct. 2002); Reg. see also section file). Moreover, part sidered of the this dis- III.A.3, infra. cussion illuminates the correct substantive applied proceedings, giv- law to be in further Although concurring colleague ques- our that, III.A.3.b, en as we note at section propriety necessity tions the infra of our ad- may present Mrs. Castellano on remand evi- 5.25(b) dressing paragraph of the 1992 M21-1 argument support posi- dence and of her 5.06(d) paragraph and its successor of the case, nursing tion that the home records should be 2000 M21-1 in this we note that Mrs. pursuant para- considered in her claim applicability Castellano raised the of these 5.06(d). provisions by arguing postdeath graph evi- dence she submitted should be considered 5.25(b) 5.25(b) M21-1, plainly was inconsistent paragraph graph of the 1992 3.1000(d)(4), provided only § which M21-1 underwent substantive with the 1992 5.25(b) for “identi- change. Specifically, paragraph acceptance for the of evidence by narrowing type altered of evi- corroborative effect of fying, verifying, or added), that which corrobo- accepted (emphasis dence from the death certificate Thus, to that which any changes rated evidence in the since at least 1972. file the death Com- actually brought corroborated the lan- made in 2000 certificate. 5.25(b) VI, M21-1, 5.25(b) pt. para. (Sept. pare into conform- guage paragraph 1992) added), to wit: (emphasis 3.1000(d)(4), § ance with regulatory regulation explicitly purported it Essentially Complete.

b. Evidence 3.1000(d)(4) implementing. of 38 be provisions The CFR ... of evi- provide acceptance for the significance, Hayes Also of Court verifying for or cor- dence after death provisions explicitly never found roborating evidence ‘in at 5.25(b) substantive; paragraph file’ to be rath 5.06(d) er, above, M21-1, VI, pt. para. (May generally as noted the Court with 2000) added), (emphasis to wit: held that the extent that these Manu “[t]o provisions post-date-of-death al affect what Essentially Complete.

c. Evidence considered, may they have the The of 38 CFR force of law as affect a substantive provide[s] acceptance ... of evidence right.” Vet.App. (quoting Fugere, at 360 statements) (including when uncertified 107) (internal 1 Vet.App. quotation at in connection with the identi- considered omitted). Although marks the Court not fying, verifying, or corroborative effect 5.25(b) paragraph regulatory ed that cited the death certificate. 3.1000(d)(4), § it never addressed whether a Although change, substantive 5.25(b) paragraph of the M21-1 could we note that —in to paragraph contrast very stand direct contravention of the 5.25(a), which no reference to a makes regulation purportedly on which it rested. regulation purports or otherwise to be in- Moreover, Fed.Reg. a terpreting regulation, see 67 to the extent there have 2002) (Mar. 9,638 rule time (proposed understanding Hayes to been 3.1000(d)(4)) (noting regula- trump regu- amend issued that the M21-1 could prior purports explain, tions “do not define the term ‘evi- lation that it has 5.25(b) promulgated in the file’ ”) paragraph properly dence been clarified that — explicitly purported implementing regulation trumps provision to be an M21-1 3.1000(d)(4), regulatory plainly as did its suc- other VA directive that is errone- M21-1, provision regulation. cessor ous or inconsistent See 5.06(d). Smith, Fournier, face, Haas, all Significantly, para- supra.6 on its concurring colleague provision 6. Our takes issue with eral Circuit held that an M21-1 in- Smith, Haas, interpretation our and Four- consistent with a did "not confer *9 However, clearly any rights” nier. Smith states that on Mr. Haas because Secre- regulations regulation interpretations tary's "VA of its own in was clear. 525 F.3d at at 1197; Fournier, Adjudication Vet.App. at its Procedures Manual see also 23 487 [M21-1] ("[Haas'] Agency's ‘controlling’ long they are indicated that when the are as not 'plainly interpretation erroneous or inconsistent with the of a statute is clear from exist- ” 1385, regulation,' para- ing regulations, any discrepancy 647 F.3d at and between 5.25(b) interpretation regulations graph clearly an of M21-1 and the 'does not confer Here, claimant.”). rights' regulation plainly that with on a is inconsistent Haas, 3.1000(d)(4) clearly provided accepting regulation. Similarly, the Fed- that such, As we conclude that Mrs. Castellano the definite and firm conviction that a mis 5.25(b) rely cannot on paragraph of take (quoting has been committed.’ Unit (1) plainly 1992 M21-1 because it in- Co., Gypsum ed States v. U.S. U.S. that it regulation pur- consistent with 68 S.Ct. 92 L.Ed. 746 (2) explain and it was ported modified to (1948))). dispute There is no appeal comport with the at the time VA; report was authorized Therefore, paragraph she filed her claim. indeed, argu this was conceded at oral 5.06(d) M21-1, May of the not undisputed ment. It also is that the re 5.25(b) M21-1, paragraph ap- of the 1992 port reflects the VA doctor’s treatment plies to Mrs. claim. Castellano’s and examination assessment of the disabil Application

3. The Board’s ities from which Mr. Castellano suffered the Substantive Law died, provides opinion before he of of disabilities, etiology of his that it such a. June 2000 VA Medical Report constitutes a of report treatment. In the appeal, decision on the Board Although the Board found that the re- found that the June 2000 medical VA re- port requested was both af- prepared port requested was not until after Mr. death, 5.06(c) (or ter nothing paragraph death, prepared Castellano’s was not until 5.25(b) predecessor, its paragraph of the death, after Mr. Castellano’s and therefore M21-1) supports a conclusion that adjudication could not be considered in the excluding such factors are a basis for of Mrs. Castellano’s accrued benefits report being from deemed in file at discussion, claim. In its the Board refer- date of death. At the time of Mrs. Castel- 5.06(c) enced both paragraph May 5.06(c)’s claim, lano’s paragraph sole re- 2000, M21-1, as well as the current version quirements for the document to be deemed (2011), of 38 C.F.R. which included the file at date of death were was not in effect at the time Mrs. Castella- (1) the document report a no filed her claim. treatment, VA, authorized 5.06(c) Application Paragraph writing. provision reduced to The did May report requested not mandate that the application paragraph its prepared before death. 5.06(c), clearly finding the Board erred in Moreover, ar- although report that the June 2000 VA medical did gues thoughts that a doctor’s unrecorded report not constitute VA-authorized on the date of a veteran’s death cannot treatment deemed included in the file at Brown, constitute a the file at date of the date of death. See Butts v. (1993) (en banc) (Court Secretary’s argument is a red Vet.App. herring. The substantive law at the time findings “clearly reviews of fact under the standard); Mrs. her claim did not Castellano filed erroneous” Gilbert v. Derwin (1990) (“ ski, thoughts unrecorded finding ‘A address doctor’s “clearly potential report ... the review and the of a at the erroneous” when state Rather, ing court on the entire evidence is left with time of death. the substantive law provision, emphasized evidence for the “corroborative effect of the the M21-1 Haas certificate,” 5.25(b) date, death regulation’s clarity, regulation’s not the plainly language. was inconsistent key component finding the M21-1 as the Moreover, although concurring colleague our provision binding. See 525 F.3d at distinguish by noting attempts to *10 Haas 1197. change regulation postdated in Haas treat- in the file at date of death permitted report a VA-authorized of Evidence ment—no matter what form it took at the possession means evidence in VA’s on or moment of the veteran’s death —to be beneficiary’s before the date deemed included in the file once reduced death, even if such evidence was not writing after This the case to death.7 physically located in the VA claims fold- report here with the June 2000 of treat- er on or before the date death. which, ment, although not recorded until no Although dispute reg- there is that this Castellano, after the death of Mr. was No- applies ulation to all claims filed after written, Secretary authorized to 27, 2002, Hyatt, supra, apply- vember see Secretary and therefore authorized ing of a regulation the amended version to to be in the file at the Mr. deemed date of already an claim is not “favored in pending death. Castellano’s Secretary expressly the law” unless the 3.1000(d)(1) (2011) § Application of or govern pending prior intends decision, rendering its Board claims, Peake, v. Rodriguez 511 F.3d 3.1000(d)(4) (2011).8 § applied also This (Fed.Cir.2008) (quoting Landgraf v. error, however, application was in because Prods., 244, 246, 114 USI Film 511 U.S. was not ret intended to be (1994)); S.Ct. 128 L.Ed.2d 229 see application roactive and its retroactive has Cruises, States, Princess Inc. v. United impermissible retroactive effect. See (Fed.Cir.2005) 397 F.3d 7261(a)(3) (Court § 38 U.S.C. shall hold (“ ‘[Congressional enactments and admin- unlawful conclusions of Board “not in ac istrative rules will not be construed to law”). cordance with The current version have retroactive effect unless them lan- 3.1000(d)(4) § promulgated on No ” guage requires result.’ (quoting this Bow- vember years 2002—more than two en v. Georgetown Hosp., Univ. 488 U.S. after Mrs. Castellano filed her claim—and 109 S.Ct. 102 L.Ed.2d 493 limits evidence in the file at date of death (1988))); Shinseki, Ervin v. 24 Vet.App. to that which possession, was VA’s wit: (applying regula- amended concurring colleague argues 7. Our of die file on the date of death for accrued “holding permit appears a VA benefits claims. treatment, requested many that is and written years after a veteran’s to be deemed Although concurring colleague our states evidence in the file at the date of death.” analysis application that our of the retroactive however, holding, simply Post 166. Our 3.1000(d)(4) § unnecessary be- Secretary restates what authorized cause “the has not maintained that 5.25(a) (and paragraph of the 1992 M21-1 its regulation applies retroactively,” Post at version, cosmetically changed 168, we note that he also has not maintained 5.06(c) M21-1), of the 2000 if he wit: Further, that it is not retroactive. our review prepare post-date-of-death authorizes VA to decisions, applied is of Board and the Board report, medical it will be deemed in the file at regulation retroactively and considered it the date of death. We further note that as of deeming as a basis for not the submitted Secretaiy promulgat- (see November evidence in the file at date of death R. at regulation limiting ed a the evidence deemed (concluding “psychiatrist’s report in the file at the date of death to that "in VA's possession not 'in VA’s on or before the possession on or the date beneficiary’s before of the benefi- (quoting date of the death’ (38 3.1000(d)(4) (2011)))). ciary's § death" C.F.R. s See 38 U.S.C. (2002); 65,707 (Oct. 28, 7252; Fed.Reg. 7261(a)(3) see 67 see abo 38 U.S.C. 2002)), (Court reports requested such that VA shall hold unlawful conclusions of law”). longer part written after death are no deemed Board "not in accordance with *11 pending tion to claim when deemed in included the file at date of clear). express intent was death to that which in possession was VA’s face, Apparent at date death. on its and With regard by intention recognized by Secretary when pro- Secretary to apply this amendment retro- mulgating regulation in actively pending to claims at the time the amendment a change long- effected in a regulation promulgated, none is evi- standing policy, explain rather than dent in the promulgating documents or clarify already an existing policy. See 67 (Mar. elsewhere, 9,638 see 67 Fed.Reg. 65,707 2002) Fed.Reg. (indicating that amended (proposed rule amend 3.1000(d)(4) § 3.1000(d)(4) divergence previ- from § and remove policy ous VA toward in the file VA Manual M21-1 inconsistent with death). at date This 3.1000(d)(4)); amendment was § amended Evidence for Ac- clarification; more than a (Oct. it was a substan- Benefits, 65,707 crued Fed.Reg. 2002) tive (final significant change limited amending rule 38 C.F.R. 3.1000(d)(4) previously evidence that could have § been noting no comments considered when an adjudicating accrued submitted during notice-and-comment pe- riod), benefits Compare claim. Princess Cruis- and the no makes such es, 397 (finding F.3d at 1365 that a “strong argument on appeal. unprecedented” evidentiary presump- To determine regulation whether a has previously tion not found in statute or effect, impermissible an retroactive we regulation significant constitutes a change look to the nature and extent of the law), in Rodriguez, F.3d law, change of the degree of con (noting that clarification of an already ex- nection between the operation of the new isting policy does not constitute substantial event, rule and a past relevant law). change in the notice, familiar considerations of fair rea reliance, sonable expectations. and settled Second, the regulation amended is con- Rodriguez, 511 F.3d at 1153 (citing nected to a past relevant event. In ad- Cruises, 1362-63). Princess 397 F.3d at dressing Cruises, this element in Princess Moreover, in the context of veterans the Federal Circuit noted a recent benefits, analysis claims and our guided U.S. Customs and Border Protection rul- by the process. dictates of fair See Thur ing evidentiary created an presumption ber, 5 Vet.App. at 123. only by that could be overcome data that factors, Evaluating the Princess Cruises had not longer been—and could no be— we conclude applying regu- line; thus, amended collected the cruise pre- latory in this instance has sumption could not be overcome impermissible First, an retroactive effect. instance and was connected to a relevant change the extent of the past Here, the law is event. 397 F.3d at 1360-66. above, significant. previous As discussed Mrs. Castellano filed her claim and ob- to November the substantive law tained the VA-authorized when VA regarding evidence in the file at date of reports treatment recorded after death permitted death reports VA-authorized still could be deemed the file at date of treatment writing reduced to death prior regulation change after death — nevertheless to be deemed included in the 2002. Similar to the situation Princess Cruises, file at date of death. This entitlement case, in Mrs. Castellano’s eliminated the 2002 amendment to amended evidentiary created an 3.1000(d)(4) (2002), limiting overcome, the evidence rule that cannot be because *12 in that case to to the time led the Federal Circuit cannot return Mrs. Castellano permit application change retroactive death and submit the before her husband’s regulation. Rodriguez, in when consid- Secretary, as the amended report change regulation in ering whether words, requires. now In other regulation event, past to a relevant was connected change rule had she known about future that explicitly the Federal Circuit noted retroactively to ex- applied that would be claim Rodriguez prior Mrs. had filed her after her hus- clude evidence obtained interpreted a statute in to the caselaw her could band’s she and husband Rodriguez, a manner favorable to Mrs. differently by obtaining have acted Rodriguez such that Mrs. had not relied report before her husband’s death. See interpretation on the favorable when she Shinseki, Tarver v. 557 F.3d (“Rodriguez her claim. Id. at 1155 filed (Fed.Cir.2009) claim- (addressing whether rely prior to her detriment on the did differently ant would have acted had she law.”). circumstance, In that state change). the rule known about regulation reversing in the ef- change Moreover, change particularly in law fect of that caselaw was not related to a past is relevant to a event—the collection Here, noted, past event. Id. Mrs. Cas- of evidence before Mr. Castellano’s death tellano filed her claim and obtained the (or thereof) Secretary lack —because report when she was entitled substan- (who regulation) partial amended the bears reports tive law to have VA-authorized collecting in relevant evi- responsibility in the file at deemed included date pursuant duty dence to the to assist. In- only possible death. It is retroactive deed, it would exceed the bounds of fair- in change regulation effect of later permit ness due a veteran to Board’s might preclude report consideration of this evidentiary enforcement of an retroactive adjudicating claim. Mrs. Castellano’s standard that excludes certain evidence Third, notice, considering fair reason- Secretary from when the did consideration reliance, expectations, able and settled change not declare the to be evi- Secretary posited policy one toward promulgated, retroactive when it was dence in the file at the date of death from Secretary timely otherwise did not col- at least 1985 to and this Court found necessary lect the evidence to surmount Tarver, it law. to be substantive See evidentiary the retroactive standard. Ulti- Secretary’s (examining F.3d at 1376 histor- longer can mately, because the evidence no evaluating expecta- ic settled practice way in a that would collected surmount tions). reasonably Mrs. Castellano relied standard, evidentiary the retroactive in gathering on that law evidence for her past a relevant opportunity collection and, provid- claim after the first regula- to the amended event connected significantly ed notice of a different law on (taking “equita- tion. See id. into account Fed.Reg. March see 67 well posture ble such as the considerations claim, after Mrs. Castellano filed her there par- and the extent to which the case nothing further she could do to have prejudice have relied to their on the ties her evidence admitted. See Princess superseded evaluating rule” in whether (“[T]he Cruises, imposi- 397 F.3d at 1366 past relevant there is a connection to a evidentiary that cannot tion of an [rule] event). possibly strongly implicates be met fair- considerations.”). further note the stark difference ness The We and the unlike the situa- past practice between the facts this case consistent Rodriguez, Rodriguez, F.3d at tion 511 F.3d at where facts expecta- of the June 2000 a claimant could not have settled consideration VA undergone pursuant general tions of a law because had medical *13 “multiple changes.” 511 F.3d at 1156. argu rule that a claimant submit new remand, ment Mrs. Cas the extent the Accordingly, to Board opportunity tellano will have an on remand rejected consideration of the June 2000 VA relevancy to establish the of these private report application medical based on the presented, records. If the must so Board 3.1000(d)(4), application amended such the Kay Principi, discuss issue. See v. 16 impermissibly had an retroactive effect. (2002) (on remand, Vet.App. 534 Overall, remand is warranted for the any must evi Board consider additional adjudi to in the Board consider this argument dence and the claimant cation of claim ac Mrs. Castellano’s presents support of the matters re West, crued benefits. See Tucker v. 11 manded). (1998) (remand Vet.App. appro 374 is priate incorrectly “where the Board has B. Stegall Compliance and Substantial law, applied the provide failed to an ade on Remand quate statement of reasons or bases for its Mrs. also contends the Castellano determinations, or where the record is oth July Stegall duty 2009 Board violated its inadequate”); erwise Webster v. Derwin readjudicate her claim when it last was ski, (1991) (Court Vet.App. 1 159 by pursuant remanded to a Court not factfinding conduct de novo but Stegall, Vet.App. JMR. See 11 at 271 rather to remand the matter for the Board (“[A] by remand to the Board Court instance). to find facts in the first claimant, confers on the veteran or other Nursing b. Private Home Records law, right compliance as a matter of private The Board found that the orders.”). specifi- with the remand More nursing postdated period home records cally, argues that the she reasons or bases VA, by of care Mrs. authorized Castel July improperly 2009 Board decision lano does not demonstrate —nor does the replicated the reasons or bases of the De- proceedings record of reflect —clear error decision, cember 2007 Board which was West, in that 12 finding. See Hilkert v. entirely by vacated the December 2008 (1999) (en banc) Vet.App. 151 (appel pursuant Court order to JMR. error); demonstrating lant has burden of Gilbert, supra. Butts and both According stated, consistently As we have ly, postdating these records VA-authorized duty upon Board’s remand is to consid could care not be deemed the file at er argument additional evidence and 5.06(c) paragraph date death under presents the claimant on remand. May M21-1. Kay, supra. duty applies This to all mat remanded, regardless they ters of whether might As to whether the records 5.06(d) explicit admissible were the bases for the remand. under Moreover, May duty the Board’s on remand is identify, because certificate, verify, or not tied to whether the Board decision on corroborate death Secretary generally notes that appeal Mrs. was set aside or vacated Brown, Leopoldo Vet.App. Castellano fails to establish the relevance v. Court. See However, 216, (remanding of these records to her claim. vacat without decision, ing setting the Board failed to address whether these or aside Board free ... to offer noting “appellant records could be considered under subsec (d) and, remand); in light tion of the need to remand additional evidence” on Ohland December 2007 bases in the Derwinski, reasons or Vet.App.

v. also cor Mrs. Castellano Board decision. vacating setting (remanding without decision); additional rectly v. notes that she submitted Sammarco aside the Board Derwinski, on the matters remand argument written (same). specifically addressed ed that was statement. Al July 2009 Board its practice for Although it is best ad specifically the Board did not though specifical note and explicitly Board argument written she much of the dress *14 argument to each additional ly respond submitted, con argument the written is remand, sufficiently Board on the raised record and the Board tained the it ade duty Kay under when meets its New to have considered it. See presumed See the issues raised. addresses quately Nicholson, F.3d 1302 v. 497 house Peake, Vet.App. 22 105 D’Aries v. (absent (Fed.Cir.2007) in specific evidence (substantial compliance, not strict otherwise, presumption is a dicating there Stegall); under compliance, required all the Board considers West, Vet.App. 18 146-47 Dyment v. record). Moreover, although July (finding compliance substantial recycled the statement of largely Board where, although examiner remand order Board, the statement neverthe the 2007 asbestos, to he presume exposure to failed that Mrs. very issues less addresses a determination as to “ultimately ma[d]e in her additional addressed Castellano [the whether asbestos contributed to argument. written disability”); see also 38 U.S.C. claimant’s] 7104(d)(1) (Board adequately must ad Thus, example, Mrs. Castella law material issues of fact and dress “all not the 2009 Board did argues no (emphasis the record” add presented on probative that more argument address her ed)). Dictionary Compare Black’s Law granted be to the VA chief weight should (9th 2009) [hereinafter ed. Black’s] because of April opinion psychiatrist’s of law or (defining “question “issue” as a psychiatrist status as chief doctor’s (defin both), at 121 fact” or with Black’s Although the personal physician. a “statement that at ing “argument” as respond specifically 2009 Board did Further, if a tempts persuade”). in its the doctor’s status to the value of on a arguments no new presents claimant the Board ad weight analysis, probative recycles old merely matter or remanded opinion probative value of dressed arguments, requirement there is no opinions and the other medical vis-a-vis different words to re employ the Board adequate an statement of reasons provided Rather, if the Board its decision. state weight assignment or bases for its the evidence and decides reconsiders which reflects an ade opinions, various previous determination on reinstate its of the issue raised quate discussion matter, language it may replicate Brown, 7 v. Mrs. See Owens Castellano. previously. employed (1995) (“It error is not Vet.App. notes, opinion of one

Here, July for the to favor the [Board] as Mrs. Castellano that of an expert medical over competent the issue of newly 2009 Board addressed adequate gives when the Board doctor’s letter and other the June VA bases.”); also of reasons see [or] in the file at statement whether it could be deemed Brown, Allday v. pursuant date of death (Board’s “must be ade (2011), statement July 2009 Board decision but to understand to enable a claimant largely replicated quate appeal otherwise decision, precise basis for the stated, Board’s had no bipolar Succinctly disorder. as well as to facilitate review in this remand is warranted for the Board to Court”). sum, Mrs. Castellano fails to consider the June medical report by specific show evidence that the Board in its determination as to whether service arguments, did not consider her written bipolar connection for higher disorder or a and fails to demonstrate that the Board’s rating for Mr. Castellano’s mental condi- statement of reasons or bases is not under- Ameson, tion is warranted. See supra. standable or in way judi- some frustrates E. SMC and TDIU Newhouse, cial review. See Hilkert and Because are inextricably inter Allday, supra. all matters, twined with the remanded C. Alzheimer’s Disease issues of SMC and also will TDIU Shinseki, remanded. Tyrues v. 23 Vet. Mrs. Castellano argues further Cf. (2009) (remand App. 178-79 generally Board erred in finding Mr. Castellano’s *15 appropriate when matter on appeal is “in aggravated by Alzheimer’s disease not his extricably intertwined” with being service-connected matters anxiety disorder. In below), decision, adjudicated support noted, aff'd, of its 631 F.3d 1380 Board alia, (1) (Fed.Cir.2011), inter that a February 1996 vacated medical other report -U.S. -, grounds, stated that Mr. Castellano’s Al 132 S.Ct. 181 (2011). zheimer’s brought psychiatric out his 2 L.Ed.2d symptoms, but did not state that psy his F. Remand symptoms chiatric brought out his Al remand, On Mrs. may pres- Castellano (2) zheimer’s, April an report medical ent, consider, and the Board must stated that Mr. Castellano’s neuroses com argument additional in support of the mat- plicated organic his (personality) disorder ters remanded. See Kay, supra. These treatment, but did not state that the matters are to be provided expeditious Alzheimer’s, complicated neuroses treatment on remand accordance with April report 1999 medical stated that Mr. § 38 U.S.C. 7112. psychiatric problems Castellano’s impacted Alzheimer’s, his but a such statement was IV. CONCLUSION

inconsistent with the earlier statement of the examiner in April a De 7, 2009, part July That of the Board cember report 1999 medical stated that appeal decision on is SET ASIDE and the anxiety Alzheimer’s, and, does not cause matters are REMANDED for further ad- although it anxiety also stated that can judication consistent opinion. with this contribute to impaired functioning in indi Alzheimer’s, viduals with “can” also im SCHOELEN, Judge, concurring filed a However, plies “can not.” because the opinion. June report may medical alter SCHOELEN, Judge, concurring: issue, the Board’s determination on this remand is warranted. See Ameson v. Although fully agree I majority Shinseki, (2011) (re Vet.App. that the Board decision should be vacated mand warranted where error could have and the matter remanded consideration determinations). altered Board’s June VA medical as D. Bipolar Disorder “evidence the file” at the time of the veteran,

Mrs. argues Castellano further death of the Frederick C. Castel- lano, Board in finding erred that Mr. I separately Castellano write several address concerns, post-death my disagreement with evidence.”10 Id. at How including although ever, majority’s attempt, through also recognized “[s]u the Court Brown, dicta, Vet.App. v. Hayes to deem ... on this perimposed [wa]s overruled. array provisions of the VA confusing Manual, amongst ... scattered two A. in the Evidence File chapters, regarding post-date-of- at Date of Death what death Id. at acceptable.” [wa]s evidence 5121(a), a vet Pursuant 38 U.S.C. Manual, M21-1, 5.25, paras. 360 (citing VA may ac surviving spouse eran’s receive 27.08). The the ex “[t]o Court held that consisting “periodic crued benefits mon tent these Manual affect etary benefits ... to which [the veteran] what post-date-of-death evidence under rat existing was entitled at death ‘ considered, they have force of “the law” decisions, those ings or based on evi right ... [as [of substantive affect] ... dence in the at date death file 5121(a) benefits,] appellant accrued ... unpaid.” due and 38 U.S.C. added). (emphasis Hayes, placement procedural in a Court cannot [M]anual 5121(a) although per disguise provi section true noted nature these [the] [of only in the file mits at date ... substantive Id. sions] rule[s].’ 5121(c) “appear[ed] section to con Derwinski, v. (quoting Fugere tradict, or at qualify, provision” least (1990)). 103, 107 *16 by permitting a claimant to submit infor from What is clear decision Court’s application. complete mation Vet. in that both Hayes, provi 1992 M21-1 at 360. App. ambiguity, Given by M21-1, majority, sions discussed Secretary stated that “the ha[d] Court (b) (1992), VI, 5.25(a), part para. were establishing latitude department wide in rules,” creating found to be “substantive as to evi policy postdate-of-death what rights, substantive because affected Noting dence Id. considered.” what post-date-of-death evidence could be regulatory framework established 5121(a). Thus, § under considered absent (c) 5121(a), implement section was “con APA adherence to the notice-and-comment best,” fusing at see 38 C.F.R. ,9 process specific public and notice to the 3.1000(d)(4)(i) of (1992) § the Court never these provi intent to revoke substantive theless stated that it was “clear” that sions, 3.1000(d)(4), provision neither could be face, over applie[d] only § “on its (set Fugere, 1 at 109-10 turned. to evidence the file at date death and and, not, ting by Secretary’s its aside rescission d[id] death certificate contemplate for provision failing terms the submission of to follow the regulation, Secretary's provid- 9. when of death or considered connection identifying, verifying, or ed as follows: with the corrobo- rative effect of the death certificate. (4) Evidence at date in the death ... file 3.1000(d)(4)(i) (1992). § 38 C.F.R. will be considered to have been met when there is on file at the date of the veteran’s view, Contrary majority’s the Court 10. death: Hayes explicitly exceptions stated that "the 3.200(b) evidence, (i) Notwithstanding § ¶ 5.25(a), (b) provided by for are not set forth statements, including therefore, 3.1000(d)(4)” and, uncertified which is § in ... did con- essentially complete weight (b) 5.25(a) and of such para. sider whether and could degree to establish connection or regula- service stand in direct contravention of the 360; III.A.2.b, disability injury when disease sub- Id. at see ante tion. section by evidence in stantiated other file at date (Fed.Cir.2011) seki, process), aff'd, APA notice-and-comment 647 F.3d 1380 (Fed. (Fed.Cir.1992). Peake, Haas v. 525 F.3d 972 F.2d 331 Cir.2008)). appeal, paragraph As relevant to this disagree I with the majority’s classifica- 5.25(a) “[ejvidence ‘in provided that file’ tion of the two Manual M21-1 paragraphs hospitalization, includes ... [‘[rjeports of para- because it is clear to me that both treatment or examinations authorized 5.25(a) 5.25(b) graph and paragraph reflect VA’], reports even if such are not reduced determination regarding writing physically placed or are not post-date-of-death what evidence is to be M21-1, VI, file until pt. after death.” considered “evidence in the file.”11 That 5.25(a) (1992). 5.25(b), para. Paragraph 5.25(b) paragraph regula- mentioned the [essentially entitled “[e]vidence Com- 5.25(a) tion, not, did does plete,” provided that not alter the paragraphs fact that both [t]he C.F.R. represented Secretary’s interpretation 3.1000(d)(4) § permit favorable action § evidentiary of 38 U.S.C. 5121 and the under 38 U.S.C. 5121 on the basis of requirements for an accrued benefits as a whole when the evi- claim, Secretary which the has conceded essentially complete dence is file he had failed to establish reg- at the time of death.... The cited until regulatory change. the 2002 The provide acceptance ulations also for the in his pro- stated 2002 notice of of evidence after death for verifying or posed rulemaking then-current corroborating evidence “in file” at death. version of 38 C.F.R. failed “ 5.25(b) (1992). M21-1, VI, pt. para. Be to define the term ‘evidence in the file’ 5.25(b) cause paragraph explicitly refer permitted but instead VA “in certain in- Secretary’s regulation, enced the ... para accept identifying, stances corrob- [to] 5.25(a) not, graph my colleagues *17 did orating[,] verifying state information from the 5.25(a) that paragraph “purportf does not death certificate and evidence submitted ] interpreting regulation.” a See sec with the claim for sup- accrued benefits to III.A.2.b, addition, port tion ante at 154. In prima already facie evidence 5.25(b) they perceive paragraph Benefits, because to file.” See Evidence for Accrued (Mar. 2002) (em- directly 9638, 4, Secretary’s pre Fed.Reg. conflict with the 67 9639 added). Moreover, regulation, 2002 phasis conclude that the Federal Secretary permitted Hayes to amend the recent of Circuit’s discussion provision adhering Hyatt recognized without v. Shinseki this Court’s (a) process. They notice and comment “perceived assert conflict between subsections issued, (c) Hayes § that since “it has been clari 5121” and that VA clarified properly promulgated regula by regulation fied that a this “confusion” in 2002. 566 1364, (Fed.Cir.2009) trumps provision (citing tion an M21-1 or other F.3d 1370 Evi- Benefits, plainly VA directive that is erroneous or dence for Fed.Reg. Accrued 67 (Mar. 4, 2002); regulation.” inconsistent with Section III. for Evidence (Oct. A.2.b, Benefits, 65,707 (citing Fed.Reg. ante at 154 Smith v. Shin Accrued VI, added); M21-1, language para. plain paragraph phasis pt. 11. Indeed the also see 5.25(a) Secretary's that it reveals is inter- (stating [ac- 5.23 that "[e]ntitlment pretation of what constitutes "evidence in the crued must be based on evidence in benefits] file.” It in File states: "Evidence at Date of referencing para. file at date of death” 'in Death. Evidence file’ includes the follow- 5.25(a)). M21-1, VI, 5.25(a) (em- ing....” pt. para. 2002)). Thus, Secretary in his 2002 notice I believe that until proposed rulemaking, give failed to mean Secretary formally published when the his ing to “evidence in the file at the date of intent to delete from the M21-1 those ambiguity death” created provisions that were inconsistent with his (c). 5121(a), U.S.C. See 38 C.F.R. file proposed definition “evidence 3.1000(d)(4)(1970); Fed.Reg. at 9639. death,” paragraph at the date of both earlier, Hayes As discussed the Court in 5.25(b) 5.25(a) paragraph remained recognized ambiguity and confusion rules, which appli- valid substantive were surrounding what constituted “evidence in appellant’s cable to the claim for accrued that, the file at date of death” and held filed in June benefits 2000. the extent 5.25 what “affected disagree majority’s I also with the reli- post-date-of-death be consid Smith, Haas, ance on and Fournier v. “ ered” it had the ‘force of law’ and creat Shinseki, (2010), 23 Vet.App. 487-88 right.” Hayes, ed “substantive Vet. the proposition properly pro- that “a circumstance, App. at 360. VA’s mulgated regulation trumps pro- an M21-1 regulation, which had been effect since at plainly vision ... that in- erroneous or least “trump,” cannot or otherwise regulation.” consistent with See section invalidate, a subsequently created “sub III.A.1, Although ante it is true right.” stantive that the Federal that Circuit concluded majority’s The reliance on Smith and rely Mr. on a Haas could 1991 M21-1 Fournier, supra, similarly both mis- provision that was with the inconsistent placed because neither case involved a is distin- —Haas provision Manual M21-1 created guishable Secretary’s regula- because the Smith, right. substantive See 647 F.3d at tion, promulgated which was after a notice- 1384-85 (noting interpretative VA’s process, and-comment went into effect in adjudication statement contained its July one month before Mr. Haas Manual was consistent VA’s TDIU filed claim for disability compensation his regulation, require agen- which did not benefits. 525 F.3d at 1196. Because cy availability to consider the of work “formally had a position taken TDIU); determining when entitlement Mr. scope excluded Haas from the Fournier, (holding at 487 filed, regulation” before his claim was the Manual M21-1 provision at issue did *18 (1) the Federal Circuit that Mr. concluded “not establish or alter the criteria for ben- rely Haas could not on the 1991 M21-1 only efits but suggested pro- illuminates a provision, which was inconsistent with the practice adjudicators”). cedural In VA later regulation, unnecessary and it was Fournier, the also Court discussed the Agency for the parallel to conduct rule- Federal Circuit’s decision Haas as indi- making to Agency’s “interpre- amend the cating that Agency’s interpreta- “when an tative statement” contained in the M21-1. tion of a statute is dear from existing Id. at 1196-97. regulations, any discrepancy between Haas, regulation the Unlike which regulation M21-1 and the ‘does not confer formally promulgated was after the M21-1 any rights’ on a claimant.” 23 at effect, provision already had added). been the (emphasis As noted pre-2002 above, 2002, version 38 C.F.R. prior to the inter- had been in effect since at pretation statutory authority of his least thus pre-dating pro the M21-1 anything Hyatt, but clear. See 566 F.3d at and, here, 1370; vision at issue acknowledged Hayes, Vet.App. (stating at 361 cf. “VA, at the earliest possible opportu- report “evidence in the file at date of death,” nity, may consider, to clarify policy unnecessary wish its as to only reject, may appellant’s what evidence submitted after death alternative considered”); argument that should be Fed.Reg. at consid “summarize, ered because it serves to cor reasons, For these I agree cannot roborate[,] verify and file at my colleagues’ May conclusion that the Appellant’s date his death.” Brief 5.25(b) paragraph amendments to (Br.) (citing at 11-13 Hayes, Vet.App. at were properly effectuated without adher- noting 360-61 and that the Board failed ence to APA notice-and-comment pro- argument). address this Because discus Rather, cess. I would conclude that the 5.25(b) paragraph sion of was not essential 1992 M21-1 provisions, specifically para- disposition, Court’s it is axiomatic 5.25(a) graph 5.25(b), paragraph re- majority’s “holding” that Smith mained valid substantive rules accor- Hayes Haas overturned is not bind dance with the Court’s decision in Hayes ing. until 2002 formally when VA rescinded its To the extent that the majority relies on Manual as “inconsistent” analysis its of the Secretary’s May 2000 with the 2002 amendment to 38 C.F.R. 5.25(b), change M21-1, to paragraph see 3.1000(d)(4). Fed.Reg. See 67 at 5.06(d) VI, pt. para. (Change 73-May 65,707. 2000) (stating that “[t]he cited noting my addition to fundamental provides acceptance for the of evidence disagreement with majority’s analysis ... when considered in connection with point, on this I would be remiss if I ne the identifying, verifying, or corroborative glected point out that majority’s certificate”), effect of the death to remand 5.25(b) concerning discussion question whether private the veteran’s and, not necessary to its decision there nursing home records be deemed evi fore, in my opinion, amounts to nothing dence in the file at the date of death more than dicta. See Black’s Law Dictio 5.06(d), pursuant to paragraph I also note (7th 1999) ed. (defining “judicial nary argument was not raised dicta” as opinion by a court on “[a]n Instead, parties. appellant argued question involved, briefed, directly that is nursing home records were “treat counsel, argued by passed and even on ment prior records created to the veteran’s court, by the but that is not essential to death entirely why and it is unclear such decision”); see Pelegrini also v. Prin relevant treatment records were not con cipi, (Ivers, J., 18 Vet.App. part sidered Appel veteran’s file.” concurring in part dissenting in part) Br. (citing Hayes, lant’s at 12 n. 6 4 Vet. “ (noting that danger of ... ‘[t]he dicta is 360-61, App. proposition for the that, although theoretically and technically “hospitalization and treatment records *19 not binding, practically, they give ap the may be considered constructively part of pearance carrying of judicial the cloak of the veteran’s file on the date of death for Brown, acceptance’ (quoting Lasovick v. purposes the of adjudicating an accrued (1994))). Vet.App. Simply put, if placed benefits claims even in the my once colleagues death”). concluded that the prior veteran’s file The clearly Board erred when it determined Board’s were reasons unclear because the report the June 2000 did not consti summarily Board stated that “records tute a report “VA-authorized of treatment” from Silver Ridge Village peri outside the such that it was error not to deem the od which VA authorized and contract for is, may facility consequences. although ... cannot That at that treatment edfor unreasonable, of the ... in the context under the facts of

be considered not seem added). I do (emphasis case, R. at 8 appeal.” report of treat to deem VA appellant’s “reasons not believe writing ment that is reduced to five weeks reasonably error allegation bases” the veteran’s death evidence in the after any alternative basis for consider raised file, majority’s holding appears per the the authorized ation of the records outside treatment, report mit a VA that is re Secretary, period, argued by and as many years and written after a quested has not identified record appellant evidence in veteran’s to be deemed failed to con purportedly that the Board the file at the date of Such a broad death. weighs in favor of her claim. sider interpretation Secretary’s of the Manual Secretary’s majority’s Br. at 16-17. The may M21-1 have the unintended effect of only regard discussion in this can be box, opening possibly leading Pandora’s misguided attempt as a to render viewed development of evidence in an accrued 5.25(b) (1992) paragraphs its discussion contemplated by benefits claim that is not 5.06(d) (2000) relevant and essential to My augmented by statute. concerns are disposition in order to reach a Court’s Secretary’s the fact that the current Man Hayes deeming desired overruled. result — provision ual M21-1 a similar contains Majority’s B. The Review of requires reports hospitalization, VA ex Findings the Board’s amination, placed or treatment to be in the above, agree As noted I that the June claims file “even if are not reduced to evi report death,” should be deemed writing ... until after and there in the file at the time of the dence veter fore, majority’s holding may not be an’s death and that this matter should be only limited to those cases that have been remanded to the Board for consideration Secretary’s pending prior I report. agree of the also that the basis 3.1000(d) amendment to 38 C.F.R. is, admitting report as conceded 5.06(c). rescission of See M21 parties, it constitutes a VA-au (2010). 1MR, VIII, pt. chs. l.f However, report thorized of treatment. I broadly Rather than construe the Secre- separately point express write on this tary’s provision, Manual M21-1 I would my regarding majority’s concern broad findings have reviewed the Board’s factual interpretation concerning report requested when the provision, permitted “[r]eports which prepared and concluded that treatment!,] hospitalization, or examina clearly Board erred when it failed to afford authorized tions VA” to considered appellant benefit of the doubt. See reports “evidence ‘in file’ ... even if such 5107(b) (“When there is an U.S.C. writing phys are not reduced to or are not approximate positive nega- balance of ically placed file until after death.” regarding any tive evidence issue material 5.25(a) M21-1, VI, (1992); pt. para. see matter, to the determination of a the Sec- 5.06(c) M21-1, VI, pt. para. (Change also retary give shall the benefit of the doubt to 2000). 73-May My my concern is that claimant.”); Principi, Mariano v. that a colleagues’ conclusion VA-author (the Court re- ized of treatment be deemed application views the Board’s of the benefit file, in the “no matter what form *20 “clearly the it doubt rule under the erro- took at the moment of the veteran’s death,” III.A.3.a.(l), 156, standard); section ante at neous” 38 C.F.R. 3.102 (“When, may suffer from the law of after unintended careful consideration of all data, procurable port requested rep- and assembled a reason- was not until after the origin, Hearing service resentative’s Informal Presenta- regarding able doubt arises tion, 15, dated June 2000—almost one disability, degree point, the or other so, month after the had died—and Veteran such doubt will be resolved favor of the n fortiori, psychiatrist’s report the claimant.”). could short, agree I with the prepared prior not have been to his that the appellant Board’s conclusions con- death.” R. at 11. cerning preparation the report the are highly speculative and are not based on findings “The Board’s task to make [is] any affirmative evidence the record. supply based on evidence of record —not to Brown, facts.” missing Beaty v. 6 Vet. decision, In its the Board found that the App. (holding 536-37 that the June 2000 treatment report was not re- “ finding eye protection, Board’s ‘with quested prepared prior to the veteran’s occupations heavy these [“farmwork and, therefore, death concluded that it equipment operation”] would still be feasi could not part be considered as evidentiary ble’ no in the ha[d] basis rec accrued benefits claim. The Board ob- erroneous); clearly ord” and was see also May served that the veteran died on West, Tucker v. report, and that the dated June (holding clearly that the Board erred when prepared indicated that it was at the speculation relied on its own medical request of the veteran’s wife and veteran’s noting that assertions without iden “[b]are (VSR). representative service The Board tifying underlying the factual basis for the acknowledged also the report was sufficient”). conclusion are not In this tense, written in the which present indicat- case, what is clear from the face of the physician thought ed that the the veteran report is that it is dated June five was still alive. The Board stated that death, weeks after the veteran’s and that there was no evidence to indicate when the requested the veteran’s wife and VSR psychiatrist prepared report, but ex- However, report. the fact that the report pounded assuming the veteran’s wife postdates the veteran’s death is not dispos requested report, “highly it was un- itive because the Manual M21 likely psychiatrist would have 1 provision clearly contemplates that evi been prepare report prior asked to may dence in the file deemed even the veteran’s death and have waited more though writing it is not reduced to until writing. than five weeks to reduce it to R. Thus, after death. as conceded Thus, at 10. the Board concluded that the Board, “possible” report it is was implicate[d]” benefit of the doubt was “not “prepared” prior to the veteran’s in the of any absence evidence that writing but not reduced to until after psychiatrist prepared report before the possibility death. R. at 10. This is bol veteran died. Id. stered the fact that doctor VA To the extent VSR have re- repeatedly referred to the in the veteran quested report, the Board stated that tense, present strongly suggesting that the “it is reasonable to assume that the VSR physician believed that the veteran was delayed See, would have the [June prepared. alive when the (“The hearing] psychiatrist’s report until the e.g., patient’s R. at 333 current GAF received,” (Global requested had it been before the Functioning) Assessment of added). 25.”) (“The (emphasis totally veteran’s death. Id. patient scored as foregoing, Based on the the Board found and now re permanently disabled psychiatrist’s quires nursing supervi- that “the VA June 2000 re- total home care for *21 III.A.3.a.2, daily living. sion of his basic activities for fect.” Section ante at 156. from the may Although generally agree He benefit use medi- I that the Secre- outbursts, § cations to control his emotional tary’s 2002 amendment 3.1000 was progno- confusion and disorientation. His apply retroactively not intended to added). guarded.”) (emphasis On sis is any application that have such would an hand, effect, the other there is no factual basis in impermissible retroactive I do not support conjec- the record to the Board’s agree majority’s analysis with the of the “highly unlikely” ture that it is that it factors. III. Princess Cruises See section physician 155-59; Cruises, would take the more than five A.3.a.2, ante Princess report writing weeks to reduce a nor States, Inc. v. 397 F.3d 1362- United (Fed.Cir.2005). there assump- basis the Board’s I also do not believe thought as to the process tions VSR’s that my colleagues’ Princess Cruises anal- for and preparing submitting informal ysis necessary disposition to the Court’s hearing presentation June because the has not maintained regulation applies retroactively. the speculative Once we remove the Board’s generally See Evidence for Accrued Bene- concerning timing determinations (Oct. fits, 65,707 28, 2002) Fed.Reg. preparation report of the and consider (indicating amend- record, is clear that § ment to 3.1000 is effective “November the Board erred when it found that 27, 2002”); Secretary’s (citing Br. at 14-15 benefit of the implicated.” doubt was “not applicable 38 C.F.R. 3.1000 as the precisely This is the scenario in which the the regulation). Assuming version of determination as to when the applied Board the current version of the prepared is “too close to call” and the regulation, agree I application such benefit of the doubt should have been af was erroneous. appellant. generally forded to the See Or (Fed. Principi, tiz v. 274 F.3d reasons, Accordingly, foregoing for the I Cir.2001) (“[T]he benefit of the doubt rule Court, concur the result reached shifting be viewed as the ‘risk of respectfully but must disagree those nonpersuasion’ onto the prove VA to portions majority’s opinion dis- benefits.”). the veteran is not entitled to cussed above. The Board’s decision Thus, I would have concluded that should be vacated the matter remand- clearly Board erred when it failed to afford ed for the Board to consider the June appellant the benefit of the doubt to 2000, report. VA medical psychiatrist conclude that the VA prepared and, report prior to the veteran’s death therefore, the report should be deemed

“evidence in the file” even though it was not reduced to writing until after the vet

eran’s death. Application

C. Retroactive 3.1000(d)(4) 38 C.F.R. majority The ap- holds that the Board’s plication §of was erroneous “because the intended to be retroactive appli- and its retroactive an impermissible

cation has retroactive ef-