Rarely in the history of the Court of Veterans Appeals do we see a decision announced and published on a Thursday revoked the following Monday. This implies an inept process with few, if any, procedural safeguards to protect the litigant. This is not to say we have not witnessed decisions withdrawn due to appeals to a higher ( Federal Circuit) which sit in abeyance until resolution occurs above. Similarly, a Veteran may ask for a panel decision following an unsuccessful Memorandum (single judge) decision where an important facet of law (case or controversy) arises. Each of these judicious interuptus examples are planned, foreseen and allow for an orderly procession to appeal to a higher tribunal. I disparage Veterans justice frequently but it can never be said that the hangman is not held in abeyance until the Veteran has exhausted every venue available to him. The spectre of the hangman nevertheless casts a long shadow.

Here, but for Judge Megan Bartley, another of our finest 7% would be thrown under the bus. I opined at length early last year that our illustrious President was asking for trouble when he opted to appoint Meg to the Court.  Her past involvement with the National Veterans Legal Services Program (NVLSP) would be cause for alarm in its own right among the staid, old-boy club up at Indiana Ave. NW. Without resorting to “told ya so”, it is apparent she has been making waves in a subtle fashion since her investiture. Nothing could make me happier. This culminated last Thursday when the Panel consisting of Judges Lance and Coral Wong Pietsch and  Bartley (dissenting), improperly decided Mr. Leonard NMI Beraud’s fate. As I suspect this link may evaporate, I have taken the liberty of transcribing it for later readers to enjoy.

Beraud v. Shinseki 3 judge panel withdrawn

Any time you take something for granted, you will find the banana peel. Any time you assume someone has carefully perused the records and reports back that everything is hunky dory and above reproach, you discover it isn’t. When building houses, we often discover that architects sometimes have brain farts. We “assume” the blueprints have been vetted and all the bugs removed.  Errors at the Court of Appeals for Veterans Claims simply don’t happen because they carefully peruse everything and make no errors, right? Well, as they say down at Dollar a Day  Car Rentals, “not exactly”.  Judge Bartley obviously discovered the error in this adjudication prior to its being published. This is evident and clearly enunciated in several places when her counterparts gleefully explain why her legal theories are defective. It begins with the tenet that once a decision is made, you must appeal it or accept that it is correct. The second mistake is that the majority has myopically focused on the decision in 1985 being subsumed by the one in 1990. Ad nauseum.

…the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has also held that “a subsequent final adjudication of a claim which is identical to a pending claim that had not been finally adjudicated terminates the pending status of the earlier claim.” Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008) (emphasis added); see Ingram, 21 Vet.App. at 243 (“[A] reasonably raised claim remains pending until there is . . . an explicit adjudication of a subsequent “claim” for the same disability.”).

(Beraud v. Shinseki 2013)

In light of this clear precedent, the Court holds that if a claim is pending by virtue of the submission of new and material evidence under 38 C.F.R. § 3.156(b), the subsequent final adjudication of an identical claim terminates the pending claim. See id.; Ingram, 21 Vet.App. at 243. To hold otherwise would not only contradict the precedent set by this Court and the Federal Circuit, it would also call into question the finality of uncountable rating decisions.

Beraud supra

Once Lance and Pietsch let these cats out of the bag, there was no turning back. Jurisprudence was headed down the road and there was going to be no more discussion. Almost.  I am intimately familiar with 38 CFR § 3.156(b). I have spent the last 19 years acquainting myself with what it is and what it isn’t. I, like Mr. Beraud, have experienced the multi-faceted interpretations of  3.156(b). The fact that the VA considers it malleable and flexible depending on the circumstances is of no concern. We call it post hoc rationalization. They define it to fit the circumstances when called out on it.

Let us investigate what 3.156(b) is… and isn’t. First a boring recital of what the VASEC purports it to be:

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter ), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

An important adjunct of this is 38 CFR § 19.29:

§ 19.29 Statement of the Case.

The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans’ Appeals. It must contain:

(a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement;

(b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and

(c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.

(Authority: 38 U.S.C. 7105(d)(1) )

Judge Bartley and her merry band of brothers disassembled Mr. Beraud’s 1990 claim and spotted this first. Watch the dates. VA mentions waiting 30 days and then 60 before they were prepared to deny the claim outright.

The New Orleans, Louisiana, VA regional office (RO) mailed a letter to Mr. Beraud on November 12, 1985, requesting additional information. R. at 1871. Specifically, the RO stated: We are having difficulty in locating your service medicals. Since your discharge from service please give us the name [and] complete mailing address of any reserve units you have been assigned to. It may expedite your claim if you know where your records are located to contact that facility personally [and] have them forward your
Medical records. Please reply as soon as possible, within 30 days.
R. at 1871. Additional boilerplate in the letter instructed Mr. Beraud to submit any new evidence within 60 days. Id

On November 29, 1985, the RO issued a decision denying Mr. Beraud’s claim. R. at 1870. The RO mailed notice of the decision to him on December 9, 1985, and informed him that he could
submit new evidence and could appeal the decision to the Board. R. at 1867-68. Later that same month, Mr. Beraud submitted a response to the November 12, 1985, letter, stating that his medical records were located at the Naval Reserve Readiness Center in New Orleans. R. at 1865. Mr. Beraud did not file a Notice of Disagreement (NOD) with the November 1985 RO decision.

During the prenuptial dance leading up to a grant or denial, evidence pertaining to the claim must be assembled. Leonard did so. When asked for more in 1985, he gladly complied within the prescribed period. VA ignored this, failed to retrieve the identified records and, indeed, proceeded to deny seventeen days later in spite of their promise to hold off. I can hear the echo of Pvt. Gomer Pyle in the background (Surprise! Surprise! Surprise, Sgt. Beraud!) Why would he file a Notice of Disagreement? Isn’t that, after all, the panacea a Vet pursues as the beginnings of a substantive appeal when it is obvious VA is intransigent and unwilling to see reason? He was not asked to do so. He was simply asked for more information to facilitate the decision. Most importantly for legal purposes, he supplied the information needed, requested and necessary to resolve the claim in his favor. VA not only ignored him but proceeded to adjudication without the requisite development they themselves initiated. Is anyone surprised?

Likewise, in the 1990 decision, Bartley’s beleaguered law clerks ascertained (before this decision was written) that  the reserve medical records were still not associated with the 1990 denial. We can assume they were also AWOL in the follow-on 1992 and 2001 adjudications that failed due to lack of New and Material Evidence. Hell, chances are they’re still sitting down in New Orleans gathering dust if VA  continues to operate as they did in 1994.

When Mr. Beraud was suddenly service connected in 2004 for all these longstanding ailments, he was nonplussed to find that the reason he hadn’t prevailed earlier was none other than a failure in 1985 to go get the reserve records. Such is VA justice.

Mr. Beraud’s subsequent pursuit of an earlier effective date predicated on Bell (constructive possession) and a few other legal precedents was an exercise in futility. He should not have wasted his breath. His whole argument stands on 3.156(b). Leonard did exactly as instructed in 1985 and he did it promptly. He didn’t file a NOD because the claim was still in flux and capable of resolution at the local Regional Office (VARO). New information material to the claim was identified as requested. The ball was in VA’s court and they failed to return the volley.

Here is where every Veteran in the judicial appeals system is going to drool if he/she draws Meg for a Judge up at the Court.

 I respectfully dissent because the majority wrongly limits the
effect of 38 C.F.R. § 3.156(b), and the Board’s failure to address whether § 3.156(b) warrants an earlier effective date of benefits prejudiced Mr. Beraud. Section 3.156(b) indicates that pendency
of a claim continues until the requisite new and material evidence is considered; here, the veteran’s Naval Reserve medical records referenced in his 1985 submission appear to be yet unobtained. See R. at 1852-53 (1990 rating decision showing that the new evidence considered consisted solely of
1989 VA outpatient reports, with no Reserve records mentioned). Because § 3.156(b) was reasonably raised by the veteran’s 1985 submission but not addressed by the Board when it determined the veteran’s effective date of benefits, the Court should remand the matter for the Board to consider whether § 3.156(b) applies.
This Court recognizes § 3.156(b) as 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.”
Young v. Shinseki, 22 Vet.App. 461, 469 (2009) (citing 72 Fed. Reg. 28,778 (May 22, 2007)). The Federal Circuit has made clear that § 3.156(b) requires VA to “assess any evidence submitted during the relevant period and make a determination whether it constitutes new and material evidence relating to the old claim.” Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In Voracek v. Nicholson, the Federal Circuit additionally concluded that the regulation requires VA to assess whether the newly submitted evidence “and evidence incorporated therein by reference qualify as ‘material'” to the original claim. 421 F.3d 1299, 1303 (Fed. Cir. 2005) (emphasis added). Here, Mr. Beraud’s submission, received within the one-year appeal period following the November 1985 RO decision and referencing the location of his Naval Reserve service records, obligated the Board to address whether that submission and any evidence incorporated therein by reference meet the requirements of § 3.156(b) and would result in an earlier effective date of benefits. The Board did not fulfill this obligation.

This obviously shows that a lot of time went into reading the RBA to ascertain when the requested reserve Naval STRs were associated with the claims file. She then summed it up in a nutshell:

Section 3.156(b) emphasizes that whether pendency continues depends on whether a decision issued subsequent to the submission of the new and material evidence considered the new evidence. 

Above I mentioned that assuming anything without checking it personally can be anathema to your building project or your legal foundation. Here, the assumption came back to bite Alan and Coral squarely on the ass. The question on everyone’s lips is who initiated the revocation? Note they are not recalling mandate. They are not revising the decision. They are not withdrawing it as moot. They are pissing on the fire and calling in the dogs. Quite frankly, this is unheard of. Either you get it right before you open your mouth or you don’t and live with the consequences when your legal house of cards is rent asunder at the Fed Circus a year later.

This case has much resonance with me as I encountered an identical situation- not once but twice. I asked the VARO and then the BVA to retrieve STRs from a civilian hospital in at a remote/isolated operating location in 1989. VA didn’t. I was forced to retrieve them myself. VA then proceeded to ignore them because they were “private” medical records and not in my STRs. Wrong. The hospital was private but the Government contracted  with them to provide Americans medical facilities. Note D says “Private Medical Records” (PMRs) not considered evidence to establish left hip complaints  in 1971.

Again, in 1994, when denied for Hepatitis and Porphyria Cutanea Tarda, I submitted new and material evidence following my initial  wave off. VA promptly mailed me a Statement of the Case (SOC) with this written in plain English:

As of February 23, 2007, their backlog must have still been out to 16 months. Fortunately for me they got caught up by June of 2008. However, the pesky  little niggling detail about 1994 as the effective date was not for discussion. It appears Mr. Beraud is about to get the same belated consideration I did when I arrived at the august Court. The VASEC suddenly decided to parse the wording of 3.156(b) and discovered he didn’t have the proverbial fig leaf to hide behind. Judge Bartley provided that fig leaf and my money is on a remand for a do over of his  1985 miscarriage.

Thus the reader can see the slipshod justice accorded Veterans day in and day out. VA promises that this will be a 98% accurate process by 2015. When decisions are made based on little or no evidence because they are disinclined to find it, your claim is denied. The reason is patently obvious as to why. If VA fails in its duty to assist, and you do not object, it becomes cast in stone. It is not Clear and Unmistakable Error once the ink has been dry for a year. Since 85% of Veterans fail to pursue their denials, they lose at what admittedly is a flawed process. VA calls it 86% accurate currently.  We thank our lucky stars for the Megan Bartleys of the world who watch over us at the CAVC. Prior to this we had no one of this calibre willing to go to the mat for us.

3.156(b) is unique in that it preserves our right to revisit an old decision where VA was remiss in fashioning the hangman’s noose correctly. There are quite possibly thousands of these decisions out there waiting to be resurrected. I think the most telling precedence set to date was evoked in King v. Shinseki (2010).

 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.

Meg summed it up at the end with a succinct sentence. Apparently it took several days (4) for  Lance and Pietsch to look it up, too.

The pendency of a claim, the finality of which § 3.156(b) abates if there is submission of new and material evidence during the appeal period, should not be terminated by an intervening RO decision that likewise fails to consider that evidence–such an outcome defeats the apparent purpose of the regulation.

It will be interesting to read the mea culpas Lance and C.W. publish when they revamp their decision, er ,revocation. It could be Ms. Bartley will suddenly find herself in the majority.