Lead Opinion
Margreit Castellano, surviving spouse of veteran Frederick C. Castellano, appeals through counsel that part of a July 7, 2009, decision of the Board of Veterans’ Appeals (Board) that denied entitlement to (1) service connection for bipolar disorder, (2) service connection for Alzheimer’s disease, (3) special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), and (4) a total disability rating based on individual unemployability (TDIU). Mrs. Castellano contends that the Board erred (1) in finding that a June 26, 2000, VA medical report and private nursing home records were not to be considered evidence in Mr. Castellano’s claims file at the date of his death, (2) by not considering her arguments on remand, as evidenced by the Board’s reissuing, in large part, the same statement of reasons or bases issued in a previous Board decision that had been remanded by the Court, and (3) in denying
For the reasons stated herein, we hold that (1) at the time Mrs. Castellano filed her claim, the Secretary authorized, inter alia, “[r]eports of hospitalization, treatment or examinations authorized by VA” to be deemed included in the file at the date of the veteran’s death “even if such reports are not reduced to writing or are not physically placed in file until after death,” VA Adjudication Procedures Manual M21-1 (M21-1), pt. VI, para. 5.06(c) (May 8, 2000), (2) this deemed inclusion was a substantive right that could not be eliminated except in accordance with law, (3) this substantive right was not eliminated properly until after Mrs. Castellano filed her claim and that change did not operate retroactively, and (4) Mrs. Castellano was entitled to the benefit of this right. We also hold, inter alia, that— although the Board is not per se prohibited from relying on many of the same reasons or bases supporting a previous Board decision that addressed the same matters but had been remanded for further adjudication — a Board decision on appeal nevertheless must stand on its own statement of reasons or bases (whether reiterating what had been stated in a previous Board decision or not) and otherwise adequately address the issues raised below. Given these holdings and based on the record on appeal and applicable law, that part of the Board decision on appeal will be set aside and the matters remanded for further adjudication consistent with this decision.
I. FACTS
Mr. Castellano served on active duty from April 1943 to October 1944. In October 1944, he was granted service connection for his mental condition, labeled at that time as “psychoneurosis.” Record (R.) at 4196. Over time, Mr. Castellano’s condition was labeled variously, including “personality disorder,” “post-traumatic stress disorder” (PTSD), “mixed depression and anxiety with psychotic symptoms,” “bipolar disorder,” and “anxiety reaction.” In the 1990s, Mr. Castellano also was diagnosed with Alzheimer’s disease (also referred to in the record as “dementia”
Mrs. Castellano filed an accrued benefits claim on June 29, 2000. Her claim was denied in a September 2005 Board decision, but Mrs. Castellano appealed. Pursuant to a joint motion for remand (JMR), her claim was remanded for further adjudication of all matters except entitlement to accrued benefits for her husband’s claim for increased benefits for service-connected anxiety reaction, which Mrs. Castellano explicitly abandoned. Her claim was denied again in a December 2007 Board decision, but subsequently remanded by the Court pursuant to another JMR. The 2009 Board decision here on appeal, inter alia, (1) found that a June 26, 2000, VA medical report of treatment or examination was prepared after Mr. Castellano’s death and therefore could not be deemed in his file at the date of his death, (2) noted that private nursing home records also could not be considered in his file at the date of his
II. PARTIES’ARGUMENTS
On appeal, Mrs. Castellano argues that the June 26, 2000, VA medical opinion and private nursing home records should have been deemed by the Board to be in Mr. Castellano’s claims file at the date of his death, pursuant to provisions in the 1992 M21-1 that she asserts were declared substantive law by Hayes v. Brown,
The Secretary contends that the M21-1 provisions relied on by Mrs. Castellano were revised on May 8, 2000, prior to her claim, and that she therefore was not entitled to the application of the prior version. Moreover, he argues that the Board plausibly determined that the June 26, 2000, VA medical opinion was prepared after Mr. Castellano’s death, and therefore was not constructively in the file at the date of his death. As to Mrs. Castellano’s other issues, the Secretary argues that (1) Mrs. Castellano has failed to demonstrate the relevancy of the private nursing home records, (2) the Board substantially complied with its remand duties under Stegall, and (3) the Board plausibly rendered findings on Alzheimer’s disease, bipolar disorder, SMC, and TDIU.
III. DISCUSSION
A. Evidence in the File at Date of Death
As discussed below, we agree with Mrs. Castellano that (1) at the time of her claim, the Secretary authorized certain documents to be deemed in the file at the date of the veteran’s death, and (2) she is entitled to the benefit of that authorization.
1. APA and the M21-1 Generally
The Administrative Procedure Act (APA) mandates that Federal agencies publish their substantive rules, and amendments thereof, in the Federal Register, to provide notice to affected citizens and the opportunity to comment. See 5 U.S.C. §§ 552, 553; Morton v. Ruiz,
Given this unique history, it is not a surprise that substantive rules promulgated before the APA might be contained in the M21-1 or a directive, letter, or other document. See Buzinski v. Brown,
Moreover, substantive rules promulgated prior to the statutory requirement that VA comply with the APA remain binding on the Secretary until they properly are revoked or amended. See Fugere,
Of course, it is now clear that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation. Compare Smith v. Shin
2. Applicable Substantive Law
a. VA-Authorized Reports of Treatment
At the time Mrs. Castellano filed her claim for accrued benefits on June 29, 2000, the law generally restricted the evidence that could be considered when adjudicating an accrued benefits claim to that which was “in the [veteran’s] file at date of death.” 38 U.S.C. § 5121. Exercising his authority to promulgate rules appropriate to carrying out the law, however, the Secretary authorized “[r]eports of hospitalization, treatment or examinations authorized by VA” [hereinafter “VA-authorized reports of treatment”] to be deemed in the file at date of death “even if such reports are not reduced to writing or are not physically placed in file until after death.”
(Sept. 5, 1985) (“Evidence ‘in file’ will be interpreted to include the following even if such reports are not reduced to writing or are not physically placed in file until after death: ... Reports of hospitalization, treatment or examinations authorized by the VA.”).
In Hayes, this Court (1) recognized some confusion with the full scope of section 5121 as it related to evidence in the file at date of death, and (2) noted that “the Secretary has wide latitude in establishing departmental policy as to what post-date-of-death evidence may be considered.”
a. Evidence in File at Date of Death. Evidence ‘in file’ includes the following, even if such reports are not reduced to writing or are not physically placed in file until after death: (1) Service department records; (2) Reports of VA hospitalization; (3) Reports of treatment or examinations in VA medical center including those in outpatient treatment folders; (4) Reports of hospitalization, treatment, or examinations authorized
by VA[;] and (5) Reports of autopsy made by VA on the date of death,
with M21-1, pt. VI, para. 5.06(c) (May 8, 2000), to wit:
c. Evidence in File at Date of Death.... Evidence ‘in file’ includes the following, even if such reports are not reduced to writing or are not physically placed in file until after death: (1) Service department records; (2) Reports of VA hospitalization; (3) Reports of hospitalization, treatment, or examinations authorized by VA; and (4) Reports of autopsy made by VA on the date of death.
Accordingly, at the time Mrs. Castellano filed her claim, (1) the Secretary deemed VA-authorized reports of treatment to be included in Mr. Castellano’s claims file at the date of his death, (2) this deemed inclusion was a substantive rule promulgated prior to the APA and pursuant to the Secretary’s statutory authority to promulgate rules, and (3) Mrs. Castellano was entitled to the benefit of this substantive rule.
b. Evidence Identifying, Verifying, or Corroborating the Death Certificate
In contrast to the May 2000 cosmetic changes made to paragraph 5.25(a)
b. Evidence Essentially Complete. The provisions of 38 CFR 3.1000(d)(4) ... provide for the acceptance of evidence after death for verifying or corroborating evidence ‘in file’ at death,
with M21-1, pt. VI, para. 5.06(d) (May 8, 2000) (emphasis added), to wit:
c. Evidence Essentially Complete. The provisions of 38 CFR 3.1000(d)(4) ... provide[s] for acceptance of evidence (including uncertified statements) when considered in connection with the identifying, verifying, or corroborative effect of the death certificate.
Although this was a substantive change, we note that — in contrast to paragraph 5.25(a), which makes no reference to a regulation or otherwise purports to be interpreting a regulation, see 67 Fed.Reg. 9,638 (Mar. 4, 2002) (proposed rule to amend § 3.1000(d)(4)) (noting that regulations prior “do not define the term ‘evidence in the file’ ”) — paragraph 5.25(b) explicitly purported to be implementing regulatory § 3.1000(d)(4), as did its successor provision of the M21-1, paragraph 5.06(d). Significantly, on its face, paragraph 5.25(b) plainly was inconsistent with § 3.1000(d)(4), which provided only for the acceptance of evidence for “identifying, verifying, or corroborative effect of the death certificate ” (emphasis added), since at least 1972. Thus, the changes made in 2000 actually brought the language of paragraph 5.25(b) into conformance with regulatory § 3.1000(d)(4), the regulation that it explicitly purported to be implementing.
Also of significance, the Court in Hayes never explicitly found the provisions of paragraph 5.25(b) to be substantive; rather, as noted above, the Court generally held that “[t]o the extent that these Manual provisions affect what post-date-of-death evidence may be considered, they have the force of law as they affect a substantive right.”
Moreover, to the extent there may have been any understanding at the time Hayes issued that the M21-1 could trump a regulation that it purports to explain, it has been clarified that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation. See Smith, Haas, and Fournier, all supra.
3. The Board’s Application of the Substantive Law
a. June 2000 VA Medical Report
In the decision on appeal, the Board found that the June 2000 VA medical report was not requested until after Mr. Castellano’s death, was not prepared until after Mr. Castellano’s death, and therefore could not be considered in the adjudication of Mrs. Castellano’s accrued benefits claim. In its discussion, the Board referenced both paragraph 5.06(c) of the May 8, 2000, M21-1, as well as the current version of 38 C.F.R. § 3.1000(d)(4) (2011), which was not in effect at the time Mrs. Castellano filed her claim.
(1) Application of Paragraph 5.06(c) of the May 8, 2000, M21-1
In its application of paragraph 5.06(c), the Board clearly erred in finding that the June 2000 VA medical report did not constitute a VA-authorized report of treatment deemed included in the file at the date of death. See Butts v. Brown,
Although the Board found that the report was both requested and prepared after death, nothing in paragraph 5.06(c) (or its predecessor, paragraph 5.25(b) of the 1992 M21-1) supports a conclusion that such factors are a basis for excluding the report from being deemed in the file at date of death. At the time of Mrs. Castellano’s claim, paragraph 5.06(c)’s sole requirements for the document to be deemed included in the file at date of death were that the document was (1) a report of treatment, (2) authorized by the VA, and (3) reduced to writing. The provision did not mandate that the report be requested or prepared before death.
Moreover, although the Secretary argues that a doctor’s unrecorded thoughts on the date of a veteran’s death cannot constitute a report in the file at date of death, the Secretary’s argument is a red herring. The substantive law at the time Mrs. Castellano filed her claim did not address a doctor’s unrecorded thoughts and the state of a potential report at the time of death. Rather, the substantive law
(2) Application of § 3.1000(d)(1) (2011)
In rendering its decision, the Board also applied § 3.1000(d)(4) (2011).
Evidence in the file at date of death means evidence in VA’s possession on or before the date of the beneficiary’s death, even if such evidence was not physically located in the VA claims folder on or before the date of death.
Although there is no dispute that this regulation applies to all claims filed after November 27, 2002, see Hyatt, supra, applying the amended version of a regulation to an already pending claim is not “favored in the law” unless the Secretary expressly intends it to govern pending or prior claims, Rodriguez v. Peake,
With regard to any intention by the Secretary to apply this amendment retroactively to claims pending at the time the regulation was promulgated, none is evident in the promulgating documents or elsewhere, see 67 Fed.Reg. 9,638 (Mar. 4, 2002) (proposed rule to amend § 3.1000(d)(4) and remove provisions of VA Manual M21-1 inconsistent with amended § 3.1000(d)(4)); Evidence for Accrued Benefits, 67 Fed.Reg. 65,707 (Oct. 28, 2002) (final rule amending 38 C.F.R. § 3.1000(d)(4) and noting no comments submitted during notice-and-comment period), and the Secretary makes no such argument on appeal.
To determine whether a regulation has an impermissible retroactive effect, we look to (1) the nature and extent of the change of the law, (2) the degree of connection between the operation of the new rule and a relevant past event, and (3) familiar considerations of fair notice, reasonable reliance, and settled expectations. Rodriguez,
Evaluating the Princess Cruises factors, we conclude that applying amended regulatory § 3.1000(d)(4) in this instance has an impermissible retroactive effect. First, the extent of the change in the law is significant. As discussed above, previous to November 27, 2002, the substantive law regarding evidence in the file at date of death permitted VA-authorized reports of treatment reduced to writing after death nevertheless to be deemed included in the file at date of death. This entitlement was eliminated by the 2002 amendment to § 3.1000(d)(4) (2002), limiting the evidence deemed included in the file at date of death to that which was in VA’s possession at date of death. Apparent on its face, and as recognized by the Secretary when promulgating the regulation in 2002, the amendment effected a change in a longstanding policy, rather than explain or clarify an already existing policy. See 67 Fed.Reg. 65,707 (indicating that amended § 3.1000(d)(4) is a divergence from previous VA policy toward evidence in the file at date of death). This amendment was more than a clarification; it was a substantive and significant change that limited evidence that previously could have been considered when adjudicating an accrued benefits claim. Compare Princess Cruises,
Second, the amended regulation is connected to a relevant past event. In addressing this element in Princess Cruises, the Federal Circuit noted that a recent U.S. Customs and Border Protection ruling created an evidentiary presumption that could only be overcome by data that had not been — and could no longer be— collected by the cruise line; thus, the presumption could not be overcome in that instance and was connected to a relevant past event.
Moreover, the change in law particularly is relevant to a past event — the collection of evidence before Mr. Castellano’s death (or lack thereof) — because the Secretary (who amended the regulation) bears partial responsibility in collecting relevant evidence pursuant to the duty to assist. Indeed, it would exceed the bounds of fairness due a veteran to permit the Board’s retroactive enforcement of an evidentiary standard that excludes certain evidence from consideration when the Secretary did not declare the regulation change to be retroactive when it was promulgated, and the Secretary otherwise did not timely collect the evidence necessary to surmount the retroactive evidentiary standard. Ultimately, because the evidence can no longer be collected in a way that would surmount the retroactive evidentiary standard, that collection opportunity is a relevant past event connected to the amended regulation. See id. (taking into account “equitable considerations such as the posture of the case and the extent to which the parties have relied to their prejudice on the superseded rule” in evaluating whether there is a connection to a relevant past event).
We further note the stark difference between the facts in this case and the facts in Rodriguez,
Third, considering fair notice, reasonable reliance, and settled expectations, the Secretary posited one policy toward evidence in the file at the date of death from at least 1985 to 2002, and this Court found it to be substantive law. See Tarver,
Accordingly, to the extent the Board rejected consideration of the June 2000 VA medical report based on the application of amended § 3.1000(d)(4), such application had an impermissibly retroactive effect. Overall, remand is warranted for the Board to consider this report in the adjudication of Mrs. Castellano’s claim for accrued benefits. See Tucker v. West,
b. Private Nursing Home Records
The Board found that the private nursing home records postdated the period of care authorized by VA, and Mrs. Castellano does not demonstrate — nor does the record of proceedings reflect — clear error in that finding. See Hilkert v. West,
As to whether the records might be admissible under paragraph 5.06(d) of the May 8, 2000, M21-1 because they identify, verify, or corroborate the death certificate, the Secretary generally notes that Mrs. Castellano fails to establish the relevance of these records to her claim. However, the Board failed to address whether these records could be considered under subsection (d) and, in light of the need to remand
for consideration of the June 2000 VA medical report and pursuant to the general rule that a claimant may submit new argument and evidence on remand, Mrs. Castellano will have an opportunity on remand to establish the relevancy of these private records. If so presented, the Board must discuss the issue. See Kay v. Principi,
B. Stegall and Substantial Compliance on Remand
Mrs. Castellano also contends that the July 2009 Board violated its Stegall duty to readjudicate her claim when it last was remanded by the Court pursuant to a JMR. See Stegall,
As we consistently have stated, the Board’s duty upon remand is to consider any additional evidence and argument that the claimant presents on remand. Kay, supra. This duty applies to all matters remanded, regardless of whether they were the explicit bases for the remand. Moreover, the Board’s duty on remand is not tied to whether the Board decision on appeal was set aside or vacated by the Court. See Leopoldo v. Brown,
Although it is best practice for the Board explicitly to note and specifically respond to each additional argument raised on remand, the Board sufficiently meets its duty under Kay when it adequately addresses the issues raised. See D’Aries v. Peake,
Here, as Mrs. Castellano notes, the July 2009 Board newly addressed the issue of the June 26, 2000, VA doctor’s letter and whether it could be deemed in the file at date of death pursuant to § 3.1000(d)(4) (2011), but the July 2009 Board decision on appeal otherwise largely replicated the reasons or bases in the December 2007 Board decision. Mrs. Castellano also correctly notes that she submitted additional written argument on the matters remanded that was not specifically addressed by the July 2009 Board in its statement. Although the Board did not specifically address much of the written argument she submitted, the written argument is contained in the record and the Board is presumed to have considered it. See Newhouse v. Nicholson,
Thus, for example, Mrs. Castellano argues that the 2009 Board did not address her argument that more probative weight should be granted to the VA chief psychiatrist’s April 1999 opinion because of the doctor’s status as chief psychiatrist and personal physician. Although the 2009 Board did not respond specifically as to the value of the doctor’s status in its probative weight analysis, the Board addressed the probative value of the opinion vis-a-vis the other medical opinions and provided an adequate statement of reasons or bases for its assignment of weight to various opinions, which reflects an adequate discussion of the issue raised by Mrs. Castellano. See Owens v. Brown,
C. Alzheimer’s Disease
Mrs. Castellano further argues that the Board erred in finding Mr. Castellano’s Alzheimer’s disease not aggravated by his service-connected anxiety disorder. In support of its decision, the Board noted, inter alia, that (1) a February 1996 medical report stated that Mr. Castellano’s Alzheimer’s brought out his psychiatric symptoms, but did not state that his psychiatric symptoms brought out his Alzheimer’s, (2) an April 1996 medical report stated that Mr. Castellano’s neuroses complicated his organic (personality) disorder and treatment, but did not state that the neuroses complicated Alzheimer’s, (8) an April 1999 medical report stated that Mr. Castellano’s psychiatric problems impacted his Alzheimer’s, but such a statement was inconsistent with the earlier statement of the examiner in April 1996, and (4) a December 1999 medical report stated that anxiety does not cause Alzheimer’s, and, although it also stated that anxiety can contribute to impaired functioning in individuals with Alzheimer’s, “can” also implies “can not.” However, because the June 26, 2000, medical report may alter the Board’s determination on this issue, remand is warranted. See Ameson v. Shinseki,
D. Bipolar Disorder
Mrs. Castellano further argues that the Board erred in finding that Mr. Castellano had no bipolar disorder. Succinctly stated, remand is warranted for the Board to consider the June 26, 2000, medical report in its determination as to whether service connection for bipolar disorder or a higher rating for Mr. Castellano’s mental condition is warranted. See Ameson, supra.
E. SMC and TDIU
Because they are inextricably intertwined with the remanded matters, the issues of SMC and TDIU also will be remanded. Cf. Tyrues v. Shinseki,
F. Remand
On remand, Mrs. Castellano may present, and the Board must consider, any additional argument in support of the matters remanded. See Kay, supra. These matters are to be provided expeditious treatment on remand in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
That part of the July 7, 2009, Board decision on appeal is SET ASIDE and the matters are REMANDED for further adjudication consistent with this opinion.
SCHOELEN, Judge, filed a concurring opinion.
Notes
. "Alzheimer disease (dementia)” is defined as “a general loss of cognitive abilities, including impairment of memory, as well as ... disturbed planning, organizing, and abstract thinking abilities.” Dorland's Illustrated Medical Dictionary 57, 492 (31st ed. 2007).
. We also have held that substantive procedural provisions favorable to a veteran and contained outside the Code of Federal Regulations are binding on the Secretary even if promulgated after VA was required by law to comply with the APA. See McCormick v. Gob-er,
. This provision also authorized service department records, reports of VA hospitalization, reports of treatment or examinations in VA medical centers including those in outpatient treatment folders, and reports of autopsy made by VA on the date of death to be deemed included in the file at date of death. M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992).
. The Secretary ultimately promulgated a regulation that limited the evidence that could be included in the file at date of death to documents already in VA's possession, but he did not do this until November 27, 2002, well after Mrs. Castellano submitted her claim. See Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002); see also section III.A.3, infra.
. Although our concurring colleague questions the propriety and necessity of our addressing paragraph 5.25(b) of the 1992 M21-1 and its successor paragraph 5.06(d) of the 2000 M21-1 in this case, we note that Mrs. Castellano raised the applicability of these provisions by arguing that the postdeath evidence she submitted should be considered under paragraph 5.25(b) of the 1992 M21-1. See Appellant's Brief at 11-12 (noting that the doctor’s report serves to "corroborate and verify information in [Mr. Castellano’s] file at the date of his death,” citing Hayes’s discussion of paragraph 5.25(b), and arguing that the nursing home records should also be considered part of the file). Moreover, this discussion illuminates the correct substantive law to be applied in further proceedings, given that, as we note infra at section III.A.3.b, Mrs. Castellano may present on remand evidence and argument in support of her position that the nursing home records should be considered in her claim pursuant to paragraph 5.06(d).
. Our concurring colleague takes issue with our interpretation of Smith, Haas, and Fournier. However, Smith states clearly that "VA interpretations of its own regulations in its Adjudication Procedures Manual [M21-1] are ‘controlling’ as long as they are not 'plainly erroneous or inconsistent with the regulation,' ”
. Our concurring colleague argues that this “holding appears to permit a VA report of treatment, that is requested and written many years after a veteran’s death, to be deemed evidence in the file at the date of death.” Post at 166. Our holding, however, simply restates what the Secretary authorized in paragraph 5.25(a) of the 1992 M21-1 (and its cosmetically changed version, paragraph 5.06(c) of the 2000 M21-1), to wit: if he authorizes VA to prepare a post-date-of-death medical report, it will be deemed in the file at the date of death. We further note that as of November 27, 2002, the Secretaiy promulgated a regulation limiting the evidence deemed in the file at the date of death to that "in VA's possession on or before the date of the beneficiary's death" (38 C.F.R. s 3.1000(d)(4) (2002); see 67 Fed.Reg. 65,707 (Oct. 28, 2002)), such that VA reports requested or written after death are no longer deemed part of die file on the date of death for accrued benefits claims.
. Although our concurring colleague states that our analysis of the retroactive application of § 3.1000(d)(4) (2011) is unnecessary because “the Secretary has not maintained that the regulation applies retroactively,” Post at 168, we note that he also has not maintained that it is not retroactive. Further, our review is of Board decisions, and the Board applied the regulation retroactively and considered it as a basis for not deeming the submitted evidence in the file at date of death (see R. at 11 (concluding that the “psychiatrist’s report was not 'in VA’s possession on or before the date of the beneficiary’s death’ ” (quoting § 3.1000(d)(4) (2011)))). See 38 U.S.C. § 7252; see abo 38 U.S.C. § 7261(a)(3) (Court shall hold unlawful conclusions of Board "not in accordance with law”).
Concurrence Opinion
Judge, concurring:
Although I fully agree with the majority that the Board decision should be vacated and the matter remanded for consideration of the June 26, 2000, VA medical report as “evidence in the file” at the time of the death of the veteran, Frederick C. Castellano, I write separately to address several
A. Evidence in the File at Date of Death
Pursuant to 38 U.S.C. § 5121(a), a veteran’s surviving spouse may receive accrued benefits consisting of “periodic monetary benefits ... to which [the veteran] was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death ... and due and unpaid.” 38 U.S.C. § 5121(a) (emphasis added). In Hayes, the Court noted that although section 5121(a) permits only evidence in the file at date of death, section 5121(c) “appear[ed] to contradict, or at least qualify, that provision” by permitting a claimant to submit information to complete the application.
What is clear from the Court’s decision in Hayes, is that both 1992 M21-1 provisions discussed by the majority, M21-1, part VI, para. 5.25(a), (b) (1992), were found to be “substantive rules,” creating substantive rights, because they affected what post-date-of-death evidence could be considered under § 5121(a). Thus, absent adherence to the APA notice-and-comment process and specific notice to the public of intent to revoke these substantive provisions, neither provision could be overturned. Fugere,
As relevant to this appeal, paragraph 5.25(a) provided that “[ejvidence ‘in file’ includes ... [‘[rjeports of hospitalization, treatment or examinations authorized by VA’], even if such reports are not reduced to writing or are not physically placed in file until after death.” M21-1, pt. VI, para. 5.25(a) (1992). Paragraph 5.25(b), entitled “[e]vidence [essentially Complete,” provided that
[t]he provisions of 38 C.F.R. § 3.1000(d)(4) permit favorable action under 38 U.S.C. § 5121 on the basis of the evidence as a whole when the evidence is essentially complete and in file at the time of death.... The cited regulations also provide for the acceptance of evidence after death for verifying or corroborating evidence “in file” at death.
M21-1, pt. VI, para. 5.25(b) (1992). Because paragraph 5.25(b) explicitly referenced the Secretary’s regulation, and paragraph 5.25(a) did not, my colleagues state that paragraph 5.25(a) does not “purportf ] to be interpreting a regulation.” See section III.A.2.b, ante at 154. In addition, because they perceive paragraph 5.25(b) to directly conflict with the Secretary’s pre2002 regulation, they conclude that the Secretary was permitted to amend the M21-1 provision without adhering to the notice and comment process. They assert that since Hayes issued, “it has been clarified that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation.” Section III. A.2.b, ante at 154 (citing Smith v. Shinseki,
I disagree with the majority’s classification of the two Manual M21-1 paragraphs because it is clear to me that both paragraph 5.25(a) and paragraph 5.25(b) reflect the Secretary’s determination regarding what post-date-of-death evidence is to be considered “evidence in the file.”
I also disagree with the majority’s reliance on Smith, Haas, and Fournier v. Shinseki,
Unlike the regulation in Haas, which was formally promulgated after the M21-1 provision had already been in effect, the pre-2002 version of 38 C.F.R. § 3.1000(d)(4) had been in effect since at least 1970, thus pre-dating the M21-1 provision at issue here, and, as acknowledged by the Secretary in his 2002 notice of proposed rulemaking, failed to give meaning to “evidence in the file at the date of death” and the ambiguity created by 38 U.S.C. § 5121(a), (c). See 38 C.F.R. § 3.1000(d)(4) (1970); 67 Fed.Reg. at 9639. As discussed earlier, the Court in Hayes recognized the ambiguity and confusion surrounding what constituted “evidence in the file at date of death” and held that, to the extent paragraph 5.25 “affected what post-date-of-death evidence may be considered” it had the “ ‘force of law’ ” and created a “substantive right.” Hayes,
The majority’s reliance on Smith and Fournier, both supra, is similarly misplaced because neither case involved a Manual M21-1 provision that created a substantive right. See Smith,
For these reasons, I cannot agree with my colleagues’ conclusion that the May 8, 2000, amendments to paragraph 5.25(b) were properly effectuated without adherence to the APA notice-and-comment process. Rather, I would conclude that the 1992 M21-1 provisions, specifically paragraph 5.25(a) and paragraph 5.25(b), remained valid substantive rules in accordance with the Court’s decision in Hayes until 2002 when VA formally rescinded its Manual M21-1 provisions as “inconsistent” with the 2002 amendment to 38 C.F.R. § 3.1000(d)(4). See 67 Fed.Reg. at 9640, 65,707.
In addition to noting my fundamental disagreement with the majority’s analysis on this point, I would be remiss if I neglected to point out that the majority’s discussion concerning paragraph 5.25(b) is not necessary to its decision and, therefore, in my opinion, amounts to nothing more than dicta. See Black’s Law Dictionary 465 (7th ed. 1999) (defining “judicial dicta” as “[a]n opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision”); see also Pelegrini v. Principi,
To the extent that the majority relies on its analysis of the Secretary’s May 2000 change to paragraph 5.25(b), see M21-1, pt. VI, para. 5.06(d) (Change 73-May 8, 2000) (stating that “[t]he cited regulation provides for the acceptance of evidence ... when considered in connection with the identifying, verifying, or corroborative effect of the death certificate”), to remand the question whether the veteran’s private nursing home records may be deemed evidence in the file at the date of death pursuant to paragraph 5.06(d), I also note that this argument was not raised by the parties. Instead, the appellant argued that the nursing home records were “treatment records created prior to the veteran’s death and it is entirely unclear why such relevant treatment records were not considered part of the veteran’s file.” Appellant’s Br. at 12 n. 6 (citing Hayes, 4 Vet.App. at 360-61, for the proposition that “hospitalization and treatment records may be considered constructively part of the veteran’s file on the date of death for the purposes of adjudicating an accrued benefits claims even if not placed in the veteran’s file prior to death”). The Board’s reasons were unclear because the Board summarily stated that “records from Silver Ridge Village outside the period for which VA authorized and contract
B. The Majority’s Review of the Board’s Findings
As noted above, I agree that the June 26, 2000, report should be deemed evidence in the file at the time of the veteran’s death and that this matter should be remanded to the Board for consideration of the report. I also agree that the basis for admitting the report is, as conceded by the parties, that it constitutes a VA-authorized report of treatment. However, I write separately on this point to express my concern regarding the majority’s broad interpretation of the Secretary’s M21-1 provision, which permitted “[r]eports of hospitalization, treatment!,] or examinations authorized by VA” to be considered “evidence ‘in file’ ... even if such reports are not reduced to writing or are not physically placed in file until after death.” M21-1, pt. VI, para. 5.25(a) (1992); see also M21-1, pt. VI, para. 5.06(c) (Change 73-May 8, 2000). My concern is that my colleagues’ conclusion that a VA-authorized report of treatment may be deemed evidence in the file, “no matter what form it took at the moment of the veteran’s death,” section III.A.3.a.(l), ante at 156, may suffer from the law of unintended consequences. That is, although it may not seem unreasonable, under the facts of this case, to deem a VA report of treatment that is reduced to writing five weeks after the veteran’s death evidence in the file, the majority’s holding appears to permit a VA report of treatment, that is requested and written many years after a veteran’s death, to be deemed evidence in the file at the date of death. Such a broad interpretation of the Secretary’s Manual M21-1 may have the unintended effect of opening Pandora’s box, possibly leading to a development of evidence in an accrued benefits claim that is not contemplated by statute. My concerns are augmented by the fact that the Secretary’s current Manual M21-1 contains a similar provision that requires VA reports of hospitalization, examination, or treatment to be placed in the claims file “even if they are not reduced to writing ... until after death,” and therefore, the majority’s holding may not be limited only to those cases that have been pending prior to the Secretary’s 2002 amendment to 38 C.F.R. § 3.1000(d) and rescission of paragraph 5.06(c). See M211MR, pt. VIII, chs. 3, l.f (2010).
Rather than broadly construe the Secretary’s Manual M21-1 provision, I would have reviewed the Board’s factual findings concerning when the report was requested and prepared and concluded that the Board clearly erred when it failed to afford the appellant the benefit of the doubt. See 38 U.S.C. § 5107(b) (“When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.”); Mariano v. Principi,
In its decision, the Board found that the June 2000 treatment report was not requested or prepared prior to the veteran’s death and, therefore, concluded that it could not be considered as part of the accrued benefits claim. The Board observed that the veteran died on May 18, 2000, and that the report, dated June 26, 2000, indicated that it was prepared at the request of the veteran’s wife and veteran’s service representative (VSR). The Board also acknowledged that the report was written in the present tense, which indicated that the physician thought the veteran was still alive. The Board stated that there was no evidence to indicate when the psychiatrist prepared the report, but expounded that assuming the veteran’s wife requested the report, it was “highly unlikely ” that the psychiatrist would have been asked to prepare the report prior to the veteran’s death and have waited more than five weeks to reduce it to writing. R. at 10. Thus, the Board concluded that the benefit of the doubt was “not implicate[d]” in the absence of any evidence that the psychiatrist prepared the report before the veteran died. Id.
To the extent the VSR may have requested the report, the Board stated that “it is reasonable to assume that the VSR would have delayed the [June 15, 2000, hearing] until the psychiatrist’s report was received,” had it been requested before the veteran’s death. Id. (emphasis added). Based on the foregoing, the Board found that “the VA psychiatrist’s June 2000 report was not requested until after the representative’s Informal Hearing Presentation, dated June 15, 2000 — almost one month after the Veteran had died — and so, a fortiori, the psychiatrist’s report could not have been prepared prior to his death.” R. at 11.
“The Board’s task [is] to make findings based on evidence of record — not to supply missing facts.” Beaty v. Brown,
Once we remove the Board’s speculative determinations concerning the timing of the preparation of the report and consider the evidence in the record, it is clear that the Board erred when it found that the benefit of the doubt was “not implicated.” This is precisely the scenario in which the determination as to when the report was prepared is “too close to call” and the benefit of the doubt should have been afforded to the appellant. See generally Ortiz v. Principi,
C. Retroactive Application of 38 C.F.R. § 3.1000(d)(4)
The majority holds that the Board’s application of § 3.1000(d)(4) was erroneous “because the regulation was not intended to be retroactive and its retroactive application has an impermissible retroactive effect.” Section III.A.3.a.2, ante at 156. Although I generally agree that the Secretary’s 2002 amendment to § 3.1000 was not intended to apply retroactively and that any such application would have an impermissible retroactive effect, I do not agree with the majority’s analysis of the Princess Cruises factors. See section III. A.3.a.2, ante at 155-59; Princess Cruises, Inc. v. United States,
Accordingly, for the foregoing reasons, I concur in the result reached by the Court, but must respectfully disagree with those portions of the majority’s opinion discussed above. The Board’s decision should be vacated and the matter remanded for the Board to consider the June 26, 2000, VA medical report.
. In 1992, the Secretary's regulation, provided as follows:
(4) Evidence in the file at date of death ... will be considered to have been met when there is on file at the date of the veteran’s death:
(i) Notwithstanding § 3.200(b) evidence, including uncertified statements, which is essentially complete and of such weight as to establish service connection or degree of disability for disease or injury when substantiated by other evidence in file at date
of death or when considered in connection with the identifying, verifying, or corroborative effect of the death certificate.
38 C.F.R. § 3.1000(d)(4)(i) (1992).
. Contrary to the majority’s view, the Court in Hayes explicitly stated that "the exceptions provided for by ¶ 5.25(a), (b) are not set forth in ... § 3.1000(d)(4)” and, therefore, did consider whether para. 5.25(a) and (b) could stand in direct contravention of the regulation. Id. at 360; see section III.A.2.b, ante at 154.
. Indeed the plain language of paragraph 5.25(a) reveals that it is the Secretary's interpretation of what constitutes "evidence in the file.” It states: "Evidence in File at Date of Death. Evidence 'in file’ includes the following....” M21-1, pt. VI, para. 5.25(a) (emphasis added); see also M21-1, pt. VI, para. 5.23 (1992) (stating that "[e]ntitlment to [accrued benefits] must be based on evidence in file at date of death” and referencing para. 5.25(a)).