Jerry L. WOODS, Appellant, v. Hershel W. GOBER, Acting Secretary of Veterans Affairs, Appellee.
No. 98-2095
United States Court of Appeals for Veterans Claims.
Dec. 15, 2000.
The Court holds that none of the statutory provisions cited by the appellant provides a basis for finding that the Secretary‘s position at the administrative level was not substantially justified because they have no applicability to a situation where the Board did not sua sponte reconsider a BVA decision where there had been a change in law within 120 days following its issuance. Here, the Board applied the law in effect at the time it issued its decision. On appeal, the Secretary acted expeditiously in agreeing to a remand under Karnas, supra, to permit the BVA to apply the revised regulation, should that be more advantageous to Mr. Haywood. Accordingly, the Court holds that the Secretary‘s position was substantially justified. See Vaughn, supra.
Upon consideration of the foregoing analysis, it is
ORDERED that the October 16, 1997, EAJA application is DENIED.
Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; and Mary Ann Flynn, Deputy Assistant General Counsel, all of Washington, DC, were on the pleadings for the appellee.
Before KRAMER, IVERS, and STEINBERG, Judges.
STEINBERG, Judge:
The appellant, Vietnam veteran Jerry L. Woods, appeals, through counsel, a July 21, 1998, decision of the Board of Veterans’ Appeals (BVA or Board) that determined that an effective date earlier than August 10, 1989, for an award of Department of Veterans Affairs (VA) service connection for post-traumatic stress disorder (PTSD) was not warranted and that denied a claim of clear and unmistakable error (CUE) in a February 1985 VA regional office (RO) decision that had denied service connection for PTSD. Record (R.) at 4, 14. The appellant has filed a brief and a reply brief and the Secretary has filed a brief. The appellant appeals only the question of an earlier effective date for the award of service connection for PTSD. Brief (Br.) at 1. This appeal is timely, and the Court has jurisdiction pursuant to
I. Relevant Background
The veteran served in the U.S. Army from January 1966 to October 1968, with service in Vietnam. R. at 18. In December 1984, he applied for service connection for, inter alia, PTSD. R. at 75-78. On his application, he listed his address as the VA Medical Center (VAMC), Unit 8, Sheridan, Wyoming, 82801. R. at 77. He also listed his ex-wife as having custody of his children and gave her address and included his sister as his nearest living relative, showing her address as “Havre, Mont.” Id. On two statements that the veteran sent to the VARO in early February, the veteran used the same Sheridan VAMC address. R. at 90, 93. In January 1985, the RO requested from the Sheridan VAMC examination and treatment reports regarding, inter alia, the veteran‘s PTSD claim. R. at 87. The record on appеal (ROA) contains a copy of one clinical record, received at the RO on January 25, 1985, that provided, apparently, a narrative summary of the veteran‘s hospitalization, but that VAMC report copy does not clearly indicate the veteran‘s name or address. R. at 83-84.
On February 6, 1985, the Sheridan VAMC notified the RO that the veteran had been released from that facility for “outpatient treatment“. R. at 98. There is no indication in the ROA that the veteran provided the RO with a change of address at that time. Before he was discharged, the veteran reported to a VA physician that he had been accepted in a 30-day program in Fort Harrison, Montana, apparently at the VAMC there, provided that he could arrive by February 7, 1985. R. at 127, 464. On February 11, 1985, the RO denied his PTSD claim and mailed notice of that decision to the veteran at the Sheridan VAMC address. R. at 104. The Sheridan VAMC apparently forwarded that notice to the Fort Harrison VAMC, but that notice was ultimately returned to the RO as undeliverable. R. at 105-06. There is no evidence in the ROA that the veteran participated at that time in any program at the Fort Harrison VAMC, but it does appear that he voluntarily checked himself into the Montana State Hospital on February 15, 1985, and was discharged on March 14, 1985 (R. at 263-66).
In August 1989, thе veteran filed a claim to reopen his previously and finally disallowed PTSD claim. R. at 108. In October 1989, the RO again requested from the Sheridan VAMC hospital reports for the veteran for the period of December 1985 to February 1986. R. at 116, 133. In December 1989, the RO received copies of two reports from the Sheridan VAMC (R. at 127-31), including a copy of the clinical record that the RO had previously received from that VAMC in January 1985 (R. at 129-30). That December 1989 copy of the January 1985 VAMC clinical record included at the bottom the veteran‘s name
In January 1990, the RO dеnied the veteran‘s PTSD claim (R. at 137), but in September 1990 the RO granted the PTSD claim and assigned a 50% rating, effective August 10, 1989, the date that the veteran had filed his claim to reopen (R. at 202-03). He filed a Notice of Disagreement (NOD) as to the September 1990 RO decision. R. at 208. In September 1991, the RO confirmed the 50% rating for PTSD. R. at 296. In October 1991, he submitted a letter from the Social Security Administration (SSA) that indicated that he had qualified for disability benefits as of October 1987. R. at 342-45. In a December 1992 decision, the Board denied a rating above 50% for PTSD. R. at 367-76. In that decision, the Board noted that, although it appeared that the veteran had never received noticе of the February 1985 RO decision, he had not, before that decision, provided VA with an updated address nor had he contacted VA concerning disability benefits for several years after that 1985 RO decision. R. at 374. The veteran appealed that BVA decision to this Court, and the Court in March 1995 issued an order remanding the claim pursuant to the parties’ joint motion for remand, which required the Board to “obtain all pertinent service, VA, and private medical records, including Social Security records“, in order to determine if the veteran satisfied the requirements for a 70% or 100% rating. R. at 378, 379-85. In June 1995, the Board remanded the claim with instructions that the RO “contact the [SSA] and request copies of a decision and all records, including medical records, regarding their determination of the veteran‘s employability for Social Security disability purposes“. R. at 389. There is no evidence in the ROA that the RO made such a request.
In a March 1997 administrative decision, the RO determined that it had fulfilled its duty to notify the veteran of the 1985 RO decision by sending a copy of that decision to the veteran‘s last known address, the Sheridan VAMC. R. at 498-99. Also in March 1997, the RO granted the veteran a 70% rating for PTSD and a rating of total disability due to individual unemployability, both effective August 10, 1989. R. at 501. The RO found no error in its 1985 mailing because it had beеn sent to the address provided by the veteran and he had not informed VA of any other address. R. at 503. The veteran filed an NOD as to the effective date, arguing that the RO should have used the information on his December 1984 application to locate him after he was discharged from the Sheridan VAMC. R. at 496, 536-37.
In the July 1998 BVA decision here on appeal, the Board determined, inter alia, that the veteran was not entitled to an earlier effective date for the award of service connection for PTSD because it found that the 1985 RO decision was final in that the RO had mailed notice of that decision to the veteran‘s “last known address” as it was required to do by VA regulation. R. at 6.
II. Analysis
The determination of the effective date for an original claim is governed by
Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
A Board determination of the proper effective date is a finding of fact. See ibid. (citing Hanson v. Brown, 9 Vet. App. 29, 32 (1996)). The Court reviews BVA findings of fact using the “clearly erroneous” standard of review set forth in
A. Date of Receipt of Claim
1. Secretary‘s Duty to Send to Vеteran Notice of RO Decision.
The appellant argues that the PTSD claim, which the RO denied in February 1985, is still pending before VA because the Secretary has failed to demonstrate that he fulfilled his obligation to mail notice of the February 1985 RO decision to the veteran. Br. at 1. That argument, in essence, is that the January 1985 RO decision has not become final because the RO failed to notify the veteran of that decision and of his right to appeal it to the Board and that, therefore, the date of the RO‘s receipt of his PTSD claim is that of his original December 1984 application, not that of his August 1989 claim to reopen.
“Under thе Court‘s current caselaw, it is well established, under
(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim....
(b) The right to notice—(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting or relief. Such notice shall clearly set forth the decision made, and applicable effective date, the reason(s) for the decision, ... and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.
....
(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief.
As to VA “notification of rights“,
Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination.
The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72.... The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to [VA] benefits.
The claimant and the representative, if any, will be informed of the right to initiate an appeal and the time within which to do so.... This information will be included in each notification of a determination of entitlement or nonentitlement to [VA] benefits by the agency of original jurisdiction.
The Court notes that the Board and both parties here have assumed that the RO had a duty in 1985 to send to the veteran notice of the 1985 RO decision and of his right to appeal it to the Board. The Court agrees. Based on the language of
The regulation in effect in 1985 did not address the place to which notice was to be sent to a claimant and any representative “of the right to initiate an appeal“.
The Court has been unable to find any statutory or regulatory provision in effect in 1985 that specifies anything about the place where the notice to the claimant should be mailed or delivered. (The first reference in the statute as to the mailing of notice of a decision came in the 1988 enactment of
2. Presumption of Regularity.
There is a presumption of regularity that attaches to the actions of public officials. See INS v. Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Morris v. Sullivan, 897 F.2d 553, 560 (D.C. Cir. 1990). This Court has applied the presumption of regularity to all manner of VA processes and procedures. See, e.g., Redding v. West, 13 Vet. App. 512, 515 (2000) (applying presumption of regularity as to whether RO received veteran‘s power of attorney that was mailed by veteran to correct RO address); Baldwin v. West, 13 Vet. App. 1, 5-6 (1999) (applying presumption of regularity as to whether RO examined and considered service medical records); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (applying presumption as to whether RO sent to claimant the application form for dependency and indemnity compensation). In this case, that presumption attaches to two actions: (1) The Secretary‘s mailing of notice of the 1985 RO decision and his right to appeal it; and (2) the VAMC‘s phоtocopying of the January 1985 VAMC clinical record.
a. Presumption as applied to RO notice of decision to veteran: The Court has held that there is a presumption of regularity that the Secretary properly discharged his official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant‘s representative, if any, on the date that the decision was issued. See Davis (Desmond) v. Brown, 7 Vet. App. 298, 300 (1994); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992), mot. for recons. granted, mot. to dismiss denied, 2 Vet. App. 307 (1992); Chute v. Derwinski, 1 Vet. App. 352, 353 (1991). The appellant may rebut that presumption by submitting “clear evidence to the effect that [VA‘s] ‘regular’ mailing practices are not regular or that they were not followed“, and the “burden then shifts to the Secretary to establish that the [VA] decision was mailed to the veteran“. Davis, supra (quoting Ashley, 2 Vet. App. at 309); see also Chute, supra.
Absent evidence that the veteran notified VA of a change of address and absent evidence that any notice sent to him at his last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996); Thompson (Charles) v. Brown, 8 Vet. App. 169, 178-79 (1995), recons. on other grounds, 9 Vet. App. 173 (1996); see also Hyson, 5 Vet. App. at 264-65. “However, where a mailing is returned as undeliverable and a claimant‘s file discloses other possible and plausible addresses, [VA] must attempt to locate the veteran at the alternative known addresses.” Cross, supra; see also Thompson (Charles) and Hyson, both supra.
The Secretary argues that ”Hyson does not require VA to reexamine the file in all cases to determine ‘whether another address is available‘” because “the Hyson Court specifically limited that decision to the ‘peculiar’ facts of that case“. Br. at 14. However, as indicated above, this Court has applied the Hyson holding in both Cross and Thompson (Charles), both supra, where VA sent notice of a BVA decision to a veteran at the “last known address” and that notice was returned as undeliverable. We perceive no significant difference in the fact that the Cross and Thompson cases involved BVA decisions, whereas the instant case involves an RO decision. Thus, where, as here, an RO has sent to a veteran notice of an RO decision but that notice was re-
We hold that the Secretary has failed to meet his burden. Although, in essence, both the Board (R. at 8) and the Secretary (Brief at 14-15) state that there was no other “possible and plausible” address to which the RO decision сould have been mailed to the veteran, the Court notes that there is no dispute that the January 1985 VAMC clinical record was before the RO at the time of its 1985 decision and that, therefore, it also was before the RO at the time that the notice of the 1985 decision mailed to the veteran at the Sheridan VAMC was returned to the RO as undeliverable. Although the 1985 copy of that clinical record in the ROA does not reflect any address of the veteran, what appears to be the same clinical record, received by the RO in 1989, shows the Havre, Montana, address as the current address of the veteran.
b. Presumption as apрlied to VAMC photocopying of its record: The presumption of regularity applies here with equal force to the VAMC transmittal to the RO of a complete copy of the January 1985 VAMC clinical record—that is, a copy that revealed the veteran‘s name and his Havre, Montana, address, as did the copy of that record that was sent to the RO by the VAMC in 1989 (R. at 129). This second application of the presumption of regularity serves to show that the 1985 and 1989 copies are copies of the same document and that the contents of each are the same, including the showing of the 1985 address. In this regard, the Court notеs that the absence of that address in the 1985 copy would appear to reflect only a problem in copying that document for purposes of creating the ROA, and that such absence certainly is not sufficient to rebut this second application of the presumption as to the address being a part of the 1985 copy. Moreover, neither the Board nor the Secretary in any way dispute that the 1985 and the 1989 copies are of the same medical record.
c. Effect of application of presumption to mailing and photocopying: Therefore, the Court holds that the claims file did, indeed, contain another address for the veteran to which the RO decision could have been mailed and that, because no such mailing occurred, the Secretary has failed to overcome his burden and the presumption of regular mailing remains rebutted. Accordingly, the Court also holds that the RO did not properly notify the veteran of its February 1985 decision and that, consequently, the veteran‘s December 1984 claim for PTSD is still pending. Because the pendency of that December 1984 claim will affect any determination of the effective date of the veteran‘s PTSD claim, the Court will remand the matter to the Board to readjudiсate this earlier-effective-date issue in accordance with this opinion.
B. Social Security Records and Date Entitlement Arose
The appellant argues, citing Stegall v. West, 11 Vet. App. 268 (1998), that the RO erred in failing to comply with the Court‘s March 1995 order granting the parties’ joint remand motion that required VA to obtain, inter alia, Social Security records (R. at 378, 383), and to comply with the Board‘s June 1995 remand order that the RO contact the SSA and request a copy of the SSA decision and of all records it had as to the veteran‘s unemployability (R. at 398). The Secretary confesses in his brief that it does not appear that the RO made any request for the veteran‘s Social Security records. Br. at 7, 19.
The Secretary argues, nonetheless, that thе appellant‘s argument should be reject-
In sum, the Court finds that this issue must be remanded to the Board for readjudication of the effective date of the appellant‘s PTSD claim and to assign the appropriate disability ratings if necessary. First, the Board must determine when the appellant‘s service-connected disability manifested itself under ... all of the “facts found,” including the [SSA records] in question, and assign an effective date no earlier than [December 1984]. Of course, whether or not that evidence submitted is credible and sufficient to suppоrt a determination that an earlier effective date is warranted is a finding of fact for the Board to determine in the first instance. See Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). Second, if the Board has assigned an earlier effective date of an award, the Board must assign the appropriate disability rating or ratings. Dependent on the “facts found,” this rating may be a constant rating if the disability has been consistent in severity or a “staged” rating if the disability has fluctuated in severity. See Fenderson v. West, 12 Vet. App. 119 (1999).
McGrath, 14 Vet. App. at 35. Accordingly, in light of evidence indicating that the appellant was receiving Social Security disability benefits (R. at 342), VA was obligated to have attempted to obtain the appellant‘s SSA records pursuant to its duty to assist under section 5107(a) as in effect during the pendency of this case, and a remand would be necessary in order for VA to make that request. See Voerth v. West, 13 Vet. App. 117, 121 (1999) (once claim is well grounded, VA has duty to assist that includes responsibility to obtain any relevant records from SSA); Baker v. West, 11 Vet. App. 163, 169 (1998) (when VA is put on notice of SSA records prior to issuance of final decision, Board must seek to obtain records pursuant to section 5107(a) duty to assist); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (VA has statutory duty to acquire both SSA decision and supporting medical records pertinent to well-grounded claim); see also
Moreover, in Stegall, this Court held that “a remand by this Court or the Board confers on the veteran or other claimant,
III. Conclusion
Upon consideration of the foregoing analysis, the ROA, and the submissions of the parties, the Court vacates in part the July 21, 1998, BVA decision and remands the earlier-effective-date matter for expeditious further development and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see
In light of the Court‘s March 1995 remand order that was not complied with, the Secretary is directed to seek the Social Security records at issue here not later than 30 days after the date of issuance of this opinion and to report to the Court not later than 90 days after the date of such opinion issuance as to whether those SSA records have been obtained. See Friscia v. Brown, 7 Vet. App. 294, 297-98 (1994); cf. Dambach v. Gober, 223 F.3d 1376, 1381 (Fed. Cir. 2000) (“[w]e believe it would be appropriate for the ... Court to set a deadline by which this veteran‘s case will be concluded“).
VACATED IN PART AND REMANDED.
IVERS, Judge, concurring in part and dissenting in part:
I concur in the majority‘s conclusion that the veteran‘s December 1984 claim is still pending and its decision to remand his case on that basis. However, I must dissent as to the Court‘s order directing the Secretary to obtain the veteran‘s Social Security Administration (SSA) records. It is an action that is at best superfluous.
It is clear that the Secretary did not fully comply with the rеmand instructions of this Court, and that he should be admonished in that regard. The veteran had access to, if not actual possession of, the SSA records in question. The duty to assist is not a one-way street, and the veteran could have submitted the SSA records to the RO. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (veteran cannot passively wait for help from VA).
Additionally, while I agree that the veteran‘s SSA records should be obtained, I believe the majority has inflated the importance of these records in establishing the veteran‘s entitlement to an earlier effective date. Section 5110(a) of title 38 of the U.S.Code provides that “the effective date of an award based on an original claim ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The regulation provides that the effective date shall be either the date of receipt of the claim or the date entitlement arose, whichever is later.
JONATHAN R. STEINBERG
Judge