Ever since the Bond v. Shinseki dustup that had to travel to the Fed. Circus for clarification, we see the VA’s continued intransigence toward the concept of new evidence submitted in that golden window either with the NOD or within the ensuing year following denial to perfect one’s appeal. Beraud v. Shinseki (2013) and it’s companion Fed Cir. decision in Charles v. Shinseki (2009) pretty much put a fork in the idea of being able to blow off Veterans like me who show up and ask what happened to the new and material evidence we filed in 1994.
The concept is boringly simple. You file. You lose. It dawns on you that they don’t have everything they need to decide your claim. You send in the new stuff that supports your version and…silence. Nothing. You start over several years later and reopen the claim. You lose again. You are not a lawyer so you don’t notice they never finished the first claim by looking at the new evidence you sent in. At some point, you hire a savvy lawyer who spots the error and the wrong is righted on appeal to either the CAVC or, in the case of it arriving in front of a CAVC judge enamoured of the VA, to the Federal Circuit Court above. There, they actually read the c-file and do the timeline investigation of what happened when and what was supposed to happen subsequent to that.
Each step in jurisprudence at the lowest level is controlled by regulations that are designed to protect the Veteran against arbitrary injustice. Often we see the mission creep of 38 CFR twisted to “fit” the circumstances so as to leave you, the Vet, outside the wire. Bond and Charles were established case law when Leonard Beraud showed up with a vaguely similar contention. How Judge Lance and Coral Wong could screw this up with so much case law to lean on speaks volumes about IQ. Saint Meg of the Our Sisters of Indiana Avenue NW Order fortunately put forth the correct argument in her dissent that carried the day at the Fed. Circuit. When remanded, the Commandant of the CAVC, then Kasold, was too embarrassed to assign the same panel to correct it. Instead, he pawned it off to St. Megan and she quickly set the record straight for all to use as the primer on 38 CFR §3.156(b) henceforth. Or so we thought.
Granted, Leonard Beraud’s contention was somewhat a duty to assist argument in that he insisted he had medical records stashed at a Nasty Guard base or his weekend warrior outfit. VA ignored him, gave him no time to retrieve them and equally made no effort to assist in locating them. This effectively put the claim on hold while the evidence was fetched. VA never sees things this way. Most of the errors I see in this vein share the same circumstances. When viewed twenty years later, VA looks in your c-file for the documents and doesn’t find them. Therefore, they surmise that they did their duty and you did not. If the documents in question are there but no resolution was arrived at, they claim you never perfected the appeal with the Form 9. This excuse is the oldest one in the M 21 Cliff Notes® denial book.
The correct procedure has always been to review the new evidence ( or pretend to) and then send out the SSOC “redenial” saying “What part of ‘no’ don’t you understand?” At that point, if you (or your VSO) have not been proactive, you have 30 sunrises and 30 sunsets to get your Form 9 in with proof of mailing. Messieurs Beraud, Bond and Charles were ignored in similar situations and no SSOCs were forthcoming. VA continues to misinterpret the idea that finality attaches to a RO decision in this circumstance. It doesn’t. That is the problem. If you send in new and material evidence in the course of the claim after the denial and before the claim is certified for appeal, VA is required to review it and make a new ( de novo) decision. If they do not perform the review, the claim goes into the deep freeze and awaits a new decision or until a SSOC is forthcoming.
The only way finality can attach to this would be if it was adjudicated at the BVA and denied. Were that to happen, that’s all she wrote. The big if would be “if they included the evidence previously overlooked” The only way to get a can opener into it afterward would be via CUE or the introduction of new service department records that had never seen the light of day as defined in § 3.156(c).
§ 3.156(b) is a handy dandy little tool in jurisprudence because it keeps the VA from going off half-cocked. Well, it’s supposed to. This explains why we are experiencing déjà vu here in the Mitchell case. What concerns me is that the Office of General Counsel dialed this one in way back in 1995 and issued VA General Counsel Precedent 9-97 which describes this to a T.
Read this holding first:
Now read the case law I unearthed to show VA’s continued, purposeful misconstrual ever since on what § 3.156(b) stands for.
Now for the meat of the decision. This is the first outrightly hostile assault by one CAVC Judge on another for their failure to grasp VA Law. Sister Meg goes off on Kasold for his off-the-wall concept of an “interlocutory” decree- a temporary decision that is subsumed by follow-on decisions. § 3.156(b) cannot be abrogated by a subsequent decision that failed to address the underlying new and material evidence submitted. That violates every precept of law-both civil, criminal and VA’s version of joke justice. Simply ignoring a contention or evidence and hoping that it will go away is a gross violation of far more than just §3.156(b). It cuts to the heart of due process.
DickandJane Vetspeak can boil this down for the legally challenged thusly:
If you submit new and material evidence after a denial but within that golden window of one year after the denial, and VA never addresses the new and material evidence, the claim remains on the books until it can clearly be seen that they reviewed the new evidence and gave you an up or down on that specific evidence. Even subsequent decisions (including BVA decisions) cannot subsume a claim where the evidence submitted was never reviewed in a de novo decision.
Mitchell is powerful ju-ju, Vets. It illustrates a situation where a dissenting CAVC Judge [Kasold] says he doesn’t buy into the majority opinion simply because he doesn’t respect and adhere to established Federal Circuit precedence already on the books. This is asinine. Being a judge entails reading the law and obeying it. You can argue until you are hoarse on what you think the interpretation is in a vague unexplored situation but you can never base your dissent on the mere fuzzy feeling that you think Bond or Beraud were decided in error. That’s what we used to call being a poor sport and unhappy with the outcome of a game because you lost. Justice doesn’t work that way. Either the decision is clearly and unmistakably correct-or it isn’t. You cannot have two disparate opinions that are equally correct.
Saint Megan knocked this one out of the park in what will undoubtedly resonate for years to come and be quoted endlessly in future dissent arguments (assuming this degree of animosity between justices becomes the wave of the future).
In sum, Cook is not in conflict with the precedent of this Court or the Federal Circuit, both of which have held that § 3.156(b) is an exception to the rule of finality. Beraud, 766 F.3d at 1404; Bond, 659 F.3d at 1367; Young, 22 Vet.App. at 466; see also AG, 536 F.3d 1310 n.8. At bottom, the dissent is based on its author’s [Kasold’s] belief that Beraud was wrongly decided by the Federal Circuit. Witness, for example, his continued emphasis on the facts that Mr. Mitchell could have appealed the September 2003 decision, challenged its determination that new and material evidence had not been submitted, and raised the fact that VA never responded to the December 1973 audiogram, but failed to do so, even though the Federal Circuit explicitly rejected almost identical objections in Beraud, see 766 F.3d at 1406 n.1. Predicated on the—as we have explained—unnecessary belief that Beraud and Cook are in conflict, our dissenting colleague calls upon the Federal Circuit to take this case en banc and overrule Beraud.
This case, however, must be decided on the law as we find it, not on the law as we would devise it. See United States v. Microsoft Corp., 253 F.3d 34, 118 (D.C. Cir. 2001) (en banc) (per curiam) (“Appellate decisions command compliance, not agreement.”).
We note that the Secretary [McDonald] filed a petition for rehearing en banc in Beraud, and, on April 16, 2015, the Federal Circuit issued a per curiam order denying that petition.
If the Feds denied Call me Bob’s petition to rehear Beraud, that pretty much means it is solid case law. If that isn’t bright line law and easily absorbed, then the Brucemeister needs some CLE big time. It must be a bitch to have been the big cheese for 10 years up at 625 Wagon Burner Lane NW and suddenly have some whippersnapper babe still wet behind the ears from the NVLSP show up and teach him what he should have already learned in law school aeons ago. Worse, Coral Wong is nodding her head in full agreement as well and she’s the FNG. Hell, at least she learned from her Beraud error. If we get another pro-VA judge in the future, the Court is going to become a fun place to take our appeals. I like to think we have four who are “enlightened” at the moment.
Veterans do not aspire to have justice subverted to win. We expect to win on the correctness of our contentions. All we ask is that the regulations be interpreted in a fair manner and not one where being born on a Thursday in a leap year is a prerequisite for winning. §3.156(b) was not written to be a “gotcha” against Vets. Quite the contrary, it was to allow us to submit new and material evidence to improve our chances of defining our claims and aiding in the eventual decision-up or down while still at the Agency of Original Jurisdiction. It doesn’t put the thumb of justice on one side of the scales in our favor. It just insures that all that we submit actually will be reviewed. I think the Congressional term in 38 USC controls-“One decision on appeal.” That certainly doesn’t encompass picking and choosing which evidence will or will not be reviewed nor when. When the VA becomes truly nonadversarial, you will see less of these frivolous OGC attempts to define the meaning of what “is” is.
Mitchell is going to be enshrined in the pantheon of important CAVC decisions alongside Buie, Bradley, Fenderson, King and the like. With all Kasold’s caterwauling, I expect Call me Bob will be knocking on the Fed. Circus’ door and asking for a do over. On what grounds, I haven’t the faintest. Maybe because it was unjustly influenced by two women with the vapors- or they were at that time of the month…