Last year while I was in the VA hospital lying around watching myself die (for a whole year), I missed out on many decisions handed down by the Court. This particular one is very interesting for a number of reasons. In Vigil v. Peake (2008) we introduced you to the concept of 38 CFR § 3.156(c) as a vehicle to obtain review of prior unappealed decisions. As we mentioned, the only other path was via a CUE filing which is very arduous and fraught with legal requirements.
In Young v. Shinseki, another facet has come to light. It’s always been there, but rarely cited. Assume you filed a claim in the past and it was denied. Let’s say you filed an NOD and also submitted new and material evidence that rebutted the denial and would prove your case. If VA failed to make a determination on the new evidence (either for or against) as contemplated in 38 CFR § 3.156(b), then your claim has never been fully adjudicated and still remains open. The only codicil to this is that the new evidence would have to prove your claim for SC.
We here at ASKNOD admire the jurisprudence exhibited by the CAVC. They continue to introduce the camel’s nose under the tent. The VA Secretary, in frustration, races from one decision to another trying to evict the camel. Between, Vigil,Grovesand Young, our esteemed Judges at the Court have provided us with precedence to help win our cases. We always enjoy reading these types of decisions as they so rarely come down in the Vet’s favor.
One has to love this paragraph:
Generally, an NOD must be filed within one year from the date of the underlying ROdecision, and if no NOD is filed within the one-year appeal period following the RO decision, the decision will become final. See 38 U.S.C. §§ 7105(b)(1), (c). However, 38 C.F.R. § 3.156 provides a potential exception to this general rule. Pursuant to § 3.156(b), VA must consider any new and material evidence received during the one-year appeal period following an RO decision “as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b) (2008). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. See Muehl v. West, 13 Vet.App. 159, 161-62 (1999).
This, however, is the clincher (emphasis is ours)
Section 3.156(b) is intended to be a veteran-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met. 72 Fed. Reg. 28,778 (May 22, 2007) (explaining that §§ 3.156(b) and 3.400 “provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires”). To accept the Secretary’s position that the Board correctly determined that the September 1996 RO decision was final would be to allow VA to ignore this claimant-friendly provision. It would also create the possibility that VA, by not considering evidence submitted during the one-year appeal period following the RO decision and simply waiting for the RO decision to become final, deprived the appellant of the earlier effective date associated with his December 1995 claim. This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings.
This is also another example of the Court curbing its collective tongue and refraining from telling the VA Secretary that he must have been raised by wolves if he continues to come up with these arcane legal arguments that don’t stand up in Court. Ah. How sweet the sound of justice for Vets. Onwards through the fog, gentlemen. Vote for Oat Willie.