Harmon Carter, Jr. v. Eric K. Shinseki , 26 Vet. App. 534 ( 2014 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0218
HARMON CARTER, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued November 20, 2013 Decided May 20, 2014)
Heather Vanhoose of Parkersburg, West Virginia, was on the brief for the appellant.
Ronen Morris, with whom Will A. Gunn, General Counsel; David L. Quinn, Acting Assistant
General Counsel; and Leslie C. Rogall, Deputy Assistant General Counsel, all of Washington, D.C.,
were on the brief for the appellee.
Before KASOLD, Chief Judge, HAGEL and MOORMAN, Judges.
HAGEL, Judge, filed the opinion of the Court. KASOLD, Judge, filed an opinion concurring
in part and dissenting in part.
HAGEL, Judge: This case returns to the Court following a decision by the Board of Veterans'
Appeals (Board) that was issued in response to a July 2010 Court order granting a joint motion for
remand in a previous appeal (Docket Number 10-0545) involving the same claim. Harmon Carter,
Jr., now appeals through counsel the resulting February 18, 2011, Board decision that again denied
entitlement to VA disability benefits for degenerative disc disease of the lumbosacral spine. Mr.
Carter continues to be represented by the same counsel who represented him in the prior proceeding
and who negotiated and signed the joint motion for remand on his behalf in the prior appeal. The
Secretary has conceded, and the Court so finds, that Mr. Carter's Notice of Appeal was timely, and
the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). On July 12,
2013, the matter was submitted to a panel of the Court to consider an issue of first impression: When
the appellant is represented by an attorney, can a joint motion for remand of an appeal to the Board
limit the scope of the Board's independent duty to search the record for issues reasonably raised by
the record? Oral argument was held on November 20, 2013.
We now hold that where an attorney-represented appellant enters into a joint motion for
remand identifying specific Board errors, the terms of that remand can be considered a factor when
determining the scope of the Board's duty to search the record for other issues that are reasonably
raised by it. We also hold that when we apply this rule to the facts presented here, the terms of the
joint motion for remand of the prior appeal (Docket Number 10-0545) were sufficient to require the
Board on remand to once again review the record to determine if there were any issues reasonably
raised even though not specified by the joint motion.
I. FACTS
Mr. Carter served on active duty in the U.S. Army from November 1965 to November 1967.
There is some evidence in the record that Mr. Carter had a preexisting low-back disability at the time
he entered service. There also is evidence that Mr. Carter was treated for low-back pain during
service. The medical examination administered at the time of his separation from service, however,
revealed no abnormalities of the spine.
In July 1989, Mr. Carter sought private treatment for low back pain and filed a claim for VA
benefits for that disability. A VA regional office denied this claim in October 1990. Mr. Carter
appealed that decision to the Board and requested a hearing. Record (R.) at 660.1 It is unclear from
the record of proceedings what actions were taken between 1990 and 2005, but Mr. Carter makes
no argument that the appeal to the Board was not adjudicated.
In May 2005, Mr. Carter sought to reopen his previously denied claim for benefits. In August
2005, the regional office denied the claim because it found that the evidence submitted was neither
new nor material.
Mr. Carter appealed the regional office decision, submitting in support of the appeal
November 2005 and June 2006 letters from his private physician, Dr. Louis Keppler. Both of these
1
On October 29, 2013, the Secretary filed a substitute record of proceedings. All citations to the record in this
opinion refer to the substitute record of proceedings.
2
letters opined that Mr. Carter's low back disability, although present when he entered service, was
aggravated by service to a significant degree.
In May 2006, Mr. Carter underwent a VA examination administered by Gene L. Duncan,
M.D. In his report, Dr. Duncan found that Mr. Carter's current low back disability was not incurred
in or aggravated by his service. R. at 426. The regional office reopened Mr. Carter's claim in July
2006 and denied it on the merits. R. at 256. Mr. Carter filed a Notice of Disagreement shortly
thereafter. As a result of Mr. Carter's appeal, VA conducted another medical examination in
November 2007. That exam was administered by Nurse Subbarao, B.N. R. at 217. Nurse Subbarao
reached the same conclusion as did Dr. Duncan.
In September 2009, the Board denied Mr. Carter's claim, and he appealed to the Court. In
March 2010, attorney Heather Vanhoose entered an appearance at the Court as counsel on behalf of
Mr. Carter (Docket Number 10-0545). That same month, Attorney Vanhoose requested a copy of
Mr. Carter's claims file. In June 2010, Mr. Carter, through Attorney Vanhoose, entered into a joint
motion for remand. In that motion, the parties agreed that the September 2009 Board decision
contained two errors: (1) The Board failed to provide adequate reasons or bases for discounting
favorable private medical evidence and (2) the Board failed to provide adequate reasons or bases for
rejecting lay statements from Mr. Carter and his wife. R. at 44-45. The Clerk of the Court granted
the parties' motion in July 2010, incorporating the terms of the joint motion by reference.2 At the
time that the parties entered into the joint motion for remand, Attorney Vanhoose had not yet
received the claims file.
In August 2010, following the joint motion for remand, the Board sent a letter to Mr. Carter,3
notifying him that the case was returned to the Board and that he had 90 days to submit additional
argument or evidence. See R. at 34-37 (hereinafter "90-Day Letter").4 The front page of the February
2
See U.S. VET. APP. R. 45(g) (stating that the Clerk of the Court may act on joint motions to remand a case).
3
In addition to Mr. Carter, the letter was also sent to Mr. Roy Spicer of Disabled American Veterans, the
veterans service organization that was Mr. Carter's former representative. R. at 36. It was not, however, sent to Attorney
Vanhoose at that time.
4
The 90-Day Letter relates to a requirement of 38 C.F.R. § 20.1304. The notice provided in this letter and its
attached "90-Day Letter Response Form" varies in a significant way from the text of § 20.1304. That regulation provides,
regarding the period to submit new evidence or argument, that "[a]n appellant and his or her representative, if any, will
3
2011 Board decision listed Disabled American Veterans as Mr. Carter's representative. However,
the notice letter transmitting the February 2011 Board decision, to which a copy of the decision was
attached, was annotated to indicate that the letter was sent to Mr. Carter as well as his representative,
Attorney Vanhoose. The notice letter does not bear the name of Disabled American Veterans. R. at
2-3. Attorney Vanhoose contends that she did not receive a copy of the Board decision at that time,
and the Secretary has conceded this issue.
On December 13, 2010, VA sent Attorney Vanhoose Mr. Carter's claims file. The claims file
included a copy of the 90-Day Letter, previously sent to Mr. Carter in August 2010. Attorney
Vanhoose did not submit any new evidence or raise new arguments on behalf of Mr. Carter to the
Board.
On February 18, 2011, 68 days after the date on which the parties agree that Attorney
Vanhoose received the 90-Day Letter as part of the claims file, and 227 days after the Court granted
the joint motion for remand, the Board issued the decision on appeal, readjudicating Mr. Carter's low
back claim as specified in the Court's remand order. The Board found that Mr. Carter's low back
disability preexisted service and that his disability had not been permanently worsened during
service. The Board specifically considered, but then rejected, favorable private medical evidence,
including Dr. Keppler's opinions, finding them not probative because they were based on Mr.
Carter's self-reported medical history, which the Board found was clearly contradicted by the
evidence of record. The Board also found both Mr. Carter's and his wife's lay testimony regarding
aggravation of his low back disability to be vague and inconsistent with the medical evidence, and
thus not credible or probative. The Board denied Mr. Carter's claim, and this appeal followed.
In this, Mr. Carter's second appeal of an adverse decision on the same claim, he identifies
three purported errors. Mr. Carter asserts that the Board (1) "failed to adjudicate the theory of direct
be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for
appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision
is promulgated by the Board of Veterans' Appeals, whichever comes first, during which they may submit . . . additional
evidence." 38 C.F.R. § 20.1304 (a) (2013) (emphasis added).
Notably, § 20.1304(c), although not mentioned in the 90-Day Letter, provides that the Board may issue its
decision before the 90 days from the notice of transmission of the record to the Board. The parties did not raise this point
in their briefs or at oral argument. Thus, the Court will not address the prejudicial impact, if any, it may have had in this
case. While no provision of § 20.1304 applies to a remand from the Court to the Board, the Court understands that VA's
routine practice is to send a "90-day letter" when a case is remanded to the Board by this Court.
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service connection" of his back disorder, (2) "failed to seek clarification of a private medical
opinion," pursuant to Savage v. Shinseki, 24 Vet. App. 259, 269-70 (2011), and (3) "erred by relying
on inadequate VA medical examinations." Appellant's September 4, 2012, Brief (Br.) at 4, 8-9.
II. THE PARTIES' ARGUMENTS
On appeal, Mr. Carter argues that the Court should address the three additional purported
errors in the first instance and set aside the February 2011 Board decision. Mr. Carter asserts that the
arguments regarding the three new errors, which he now raises before the Court, were reasonably
raised by the record, thus the Board had an independent duty to consider and adjudicate them,
regardless of the terms of a joint motion for remand, and that failure to do so is error requiring
another remand to the Board. He further contends that there was insufficient notice and opportunity
to submit additional argument and evidence to the Board on remand.
The Secretary argues that, when a claim is remanded by the Court on the basis of a joint
motion for remand, the Board, on remand, is not required to conduct another review of the entire
record with a view toward identifying issues not specified in the joint motion. In this case, the
Secretary asserts that, because Mr. Carter did not submit any arguments to the Board subsequent to
the Court's granting of the July 2010 joint motion for remand, he is precluded from raising new
issues or argument in this judicial appeal.
On October 24, 2013, the National Veterans Legal Services Program (Amicus) filed an
amicus curiae brief with the Court to address the broader implications of a Court decision regarding
joint motions for remand. Amicus asserted that "[t]he scope of a [joint motion for remand] should
never be a factor in determining the scope of the Board's duties on remand or whether the doctrine
of exhaustion of administrative remedies should apply." Amicus Curiae Br. at 2. The reasoning
behind this assertion is three-fold: (1) based on the Court's current case law, in Mahl v. Principi,
15 Vet. App. 37, 38 (2001) (per curiam order), and Best v. Principi, 15 Vet. App. 18 (2001) (per
curiam order), joint motions for remand "secure[] the most expeditious relief for the appellant and
conserve[] judicial resources," and are "often the optimal course of action for both the appellant and
the Court," id. at 4; (2) the Board has an independent duty to address arguments reasonably raised
in the record, regardless of the terms of a joint motion for remand, Id. at 6; and (3) the Secretary's
5
position would result in fewer settlements and increased consumption of scarce judicial resources,
Id.
In response to the Amicus brief, the Secretary first argues that, if the Board is "required to
sua sponte scour the record for every potential issue as if the joint agreement did not exist," then joint
motions for remand would no longer be efficient and there would be no reason for the parties to set
out specific instructions for the Board regarding the terms of the agreement. Secretary's Response
to Amicus Curiae Br. at 2. The Secretary further asserts that the theory proposed by Amicus is
misguided because "[a]n appellant's ultimate interest is not in running the hamster wheel of remands
but in securing benefits to which he or she is entitled." Id. at 5. The Secretary contends that his
"position favors fuller discussions and negotiations between represented parties, and encourages
appellants to advance arguments on remand to the Board. The long-term result of more fully
delineating the issues on appeal and identifying those issues to the Board will result in fewer
subsequent appeals to the Court." Id. Second, the case law set forth in Best and Mahl relates to
remands by the Court, which should be treated differently than remands based on joint motions for
remand.
At oral argument, the Secretary stated that a joint motion for remand is "an agreement, it is
a compromise, it is a strategic compromise between the parties entered into in a purely adversarial
system. It is entered into by attorneys. An attorney has every right to concede or to give up a
particular point in hopes that the outcome is more desirable." Oral Argument at 25:00-26:10, Carter
v. Shinseki, U.S. VET. APP. NO. 12-0218 (Argued Nov. 20, 2013) (available at
http://www.uscourts.cavc.gov/oral-arguments_audio.php). In contrast, remands not predicated on
a joint motion for remand–in which there is no agreement between the parties and the Court has
discretion to decide cases on the narrowest possible grounds–leave it to the parties or the Board to
resolve the issues on remand. Finally, the Secretary points out that the exhaustion doctrine is entirely
discretionary and requires a case-by-case analysis. See Secretary's Supplemental Br. at 14 (citing
Maggitt v. West, 202 F.3d 1370, 1378 (Fed. Cir. 2000)).
6
III. ANALYSIS
A. Effect of Attorney-Represented Joint Agreement Embodied in Joint Motion for Remand
1. Opportunity to Submit Additional Argument or Evidence on Remand
It is undisputed that Mr. Carter and his representative were entitled to submit additional
argument or evidence to the Board on remand. The July 2010 joint motion for remand stated, "On
remand, [Mr. Carter] should be free to submit additional evidence and argument regarding his claim.
See Kay v. Principi, 16 Vet. App. 529, 534 (2002); Kutscherousky v. West, 12 Vet. App. 369, 372-73
(1999) (per curiam order)." R. at 46. Additionally, at oral argument, the Secretary acknowledged that
"the appellant is always free to present new arguments and submit additional evidence [on remand]."
Oral Argument at 39:30; see also 38 C.F.R. §§ 19.37 (2013), 20.1304(a). It is further undisputed that
between the date on which the Court granted the joint motion for remand on July 6, 2010, and the
date of the Board decision on February 18, 2011, Mr. Carter did not raise any new arguments or
present any new evidence to the Board.
2. Arguments or Issues Reasonably Raised by the Record
Mr. Carter argues that the Board always has a duty to consider and adjudicate arguments
reasonably raised by the record regardless of the terms of a joint motion for remand and regardless
of whether additional argument or evidence has been submitted on remand. Amicus agrees, stating
that "[t]he scope of a [joint motion for remand] should never be a factor in determining the scope
of the Board's duties on remand or whether the doctrine of exhaustion of administrative remedies
should apply." Amicus Curiae Br. at 2. The Secretary argues that the terms of a joint motion for
remand limit the Board's requirements on remand, and the Board need only address issues raised in
the joint motion for remand or any additional arguments or evidence presented to it on remand.
This argument, specifically raised by the parties, requires the Court to determine the breadth
of the Board's obligations following a joint motion for remand, as well as the Court's discretion to
address or refuse to address arguments raised for the first time on appeal to the Court.
i. History of the Exhaustion Doctrine
The issue of whether the Court should consider arguments raised before it in the first instance
was addressed in Maggitt. In that case, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) held that this Court has jurisdiction to hear arguments presented to it in the first instance,
7
provided that it otherwise has jurisdiction over the claim. The Federal Circuit determined that,
although this Court may hear arguments raised for the first time on appeal, "it is not compelled to
do so in every instance," and can consider, refuse to hear, or remand arguments presented to it in the
first instance. 202 F.3d at 1377. The determination of whether to invoke the exhaustion of
administrative remedies doctrine against a party is case-specific: "The test is whether the interests
of the individual weigh heavily against the institutional interests the doctrine exists to serve. . . .
Those institutional interests are, in the main, to protect agency administrative authority and to
promote judicial efficiency." Id. The Federal Circuit continued, stating that "the decision whether
to invoke the doctrine is a matter of discretion" and that this Court "is uniquely positioned to balance
and decide the considerations regarding exhaustion in a particular case." Id. at 1378.
In Robinson v. Peake, this Court was again presented with a question of "issue exhaustion"
when a theory (or argument) was raised by the appellant for the first time on appeal. 21 Vet. App.
545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Court
determined that, because proceedings before VA are nonadversarial, "the Board's obligation to
analyze claims goes beyond the arguments explicitly made." Id. On appeal, the Federal Circuit held
that the Board is obligated to consider arguments or issues reasonably raised by the record, even if
not raised by the claimant, and suggested that the Board errs if it fails to do so. Robinson, 557 F.3d
at 1361.
In Massie v. Shinseki, 25 Vet. App. 123, 130 (2011), this Court noted the "uncertainty"
created by the Federal Circuit's failure to discuss Maggitt in its decision in Robinson. Maggitt, which
was decided nine years before Robinson, stated clearly that the Court could, based on the exhaustion
doctrine, refuse to hear arguments raised for the first time on appeal to the Court. Maggitt, 202 F.3d
at 1377 (noting that the Court is "not compelled" to hear arguments raised for the first time on appeal
"in every instance"). However, the language in Robinson could be read to indicate the opposite.
Robinson, 557 F.3d at 1362 (holding that, once an issue has been expressly raised before the Board,
the Board is required to consider any other theories reasonably raised by the record). This
"uncertainty" arises where the Board has failed to address an argument reasonably raised by the
record, but not raised by counsel before the Board, and raises the question of whether the Court
maintains discretion to refuse to hear such an argument if raised for the first time on appeal.
8
The appellant in Massie, who was represented by the same counsel throughout the entirety
of the appeal, raised an issue for the first time on appeal to the Court. The Court determined that
VA's interest in having a fair and full opportunity to consider all of the appellant's theories
outweighed the appellant's interests in having his arguments heard for the first time on appeal to the
Court. The appellant's "attempt on appeal to this Court to obtain a remand by presenting a different
theory dependent upon different provisions of law would, if successful, only perpetuate the ever-
increasing 'hamster-wheel reputation of veterans law.'" 25 Vet. App. at 128 (quoting Coburn v.
Nicholson, 19 Vet. App. 427, 434 (2006)). On appeal, the Federal Circuit decided the case on other
grounds and stated, "we need not address the [Court of Appeals for Veterans Claims] discussion of
exhaustion or the effect of Maggitt on this case." Massie v. Shinseki, 724 F.3d 1325, 1329 (Fed. Cir.
2013).
Before the Court now is the issue of whether a joint motion for remand can limit the Board's
responsibility with regard to review of the record on remand and how this impacts the Court's
exercise of discretion with regard to the exhaustion doctrine.
ii. Joint Motion for Remand
A joint motion for remand, when drafted properly, identifies the essential, undisputed facts
necessary for the adjudication of the claim; the relief sought; and most importantly, clear instructions
to the Board as to what it is required to address, and what actions it is required to take, on remand.
This increases both administrative and judicial efficiency. Joint motions for remand are inherently
different than Court remands under Best and Mahl because they are negotiated and agreed to by
adverse, consenting parties. It is the parties' responsibility to "enumerate[ ] clear and specific
instructions to the Board" in the drafting of a joint motion for remand. Forcier v. Nicholson,
19 Vet. App. 414, 426 (2006). Further, it is well settled that piecemeal litigation is not favored. See
Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) ("Advancing different arguments at successive
stages of the appellate process does not serve the interests of the parties or the Court. Such a practice
hinders the decision-making process and raises the undesirable specter of piecemeal litigation."),
aff'd, 972 F.2d 331 (Fed. Cir. 1992); see also Gen. Elec. Co. v. Int'l Trade Comm'n, 692 F.3d 1218,
1220 (Fed. Cir. 2012) (quoting McLish v. Roff, 141 U.S. 661, 665-66 (1891) ("From the very
foundation of our judicial system the object and policy of the acts of congress in relation to appeals
9
and writs of error . . . have been to save the expense and delays of repeated appeals in the same suit,
and to have the whole case and every matter in controversy in it decided in a single appeal.")). As
the Federal Circuit recently stated, "'[W]here litigants have once battled for the court's decision, they
should be neither required, nor without good reason permitted, to battle for it again.'" Dixon v.
Shinseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014) (quoting Official Comm. of the Unsecured Creditors
of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)).
A joint motion for remand is an effective tool for identifying errors and speedily and
efficiently resolving a veteran's claim. Properly used, it benefits the appellant, the Secretary, and the
Court. Improperly or negligently used, however, it has just the opposite effect on each of these
entities, in that it results in the waste of resources for the Court and the Secretary and causes an
unnecessary delay in resolving the matters complained of by the appellant.
The crux of the issue now before the Court is: Whether a veteran, through counsel, may make
a strategic decision to enter into an agreement with the Secretary that tailors the Board's duties on
remand, in an effort to adjudicate the appeal more expeditiously. The answer is, it depends upon the
specificity of the agreement interpreted in the context of other facts present in the appeal. The Court
finds the Federal Circuit's holding in Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999), instructive.
There, the Federal Circuit agreed with other courts that had held that "the failure of an appellant to
include an issue or argument in the opening brief will be deemed a waiver of the issue or argument."
Id.; see also Pieczenik v. Dyax Corp., 265 F.3d 1329, 1332-33 (Fed. Cir. 2001) ("It is well settled
that an appellant is not permitted to make new arguments that it did not make in its opening brief.").
When parties enter into a joint motion for remand, they imply that the terms of the agreement will
control.
The current facts are notably distinguishable from those presented in Maggitt, Robinson, and
Massie because those cases did not involve a joint motion for remand; however, those cases are
instructive. Specifically, the Court will consider the principles described in Maggitt regarding the
Court's discretion in applying the exhaustion doctrine as applied within the context of a joint motion
for remand, where the appellant is represented by counsel. In this regard, the terms of the joint
motion for remand will have a bearing on what might otherwise be reasonably raised by the record.
The Board's duty to consider issues reasonably raised by the record must be viewed in light of the
10
terms and scope of the joint motion and the fact that attorneys are presumed to know their case and
to tailor their pleadings based on the facts and law. Cf. Robinson, 21 Vet. App. at 554 (noting that
"the presence of [an] attorney [ ]throughout the appeals process before the agency is a significant
factor" and further stating the "[w]here an attorney uses terms of art that make sense in the context
used, the Board may reasonably conclude that there is no ambiguity to be resolved with a
sympathetic reading or a liberal construction of the pleadings."); see also Strickland v. Washington,
466 U.S. 668, 690 (1984) ("[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.").
Thus, when an attorney agrees to a joint motion for remand based on specific issues and
raises no additional issues on remand, the Board is required to focus on the arguments specifically
advanced by the attorney in the motion, see Forcier, 19 Vet. App. at 426, and those terms will serve
as a factor for consideration as to whether or to what extent other issues raised by the record need
to be addressed. Indeed, we are not ignorant of the fact that there often are issues not raised by an
attorney because, based on his or her full understanding of the case, the issue is not favorable to the
client or otherwise is frivolous. Cf. Strickland, 466 U.S. at 690; Robinson, 21 Vet. App. at 554.5
iii. Application
The question thus presented is whether the language in the July 2010 joint motion for remand
is clear and specific enough to instruct the Board of its responsibilities on remand and for the Court
to ascertain whether the agreement was followed. See Forcier, 19 Vet. App. at 426 (noting that
parties' failure in a joint motion for remand to "state clearly the purpose of the remand and to set
forth detailed directions to describe the action the Board should take upon remand" can result "in
terms too vague and ambiguous to give rise to any further Board duties"). The Court concludes that
the instructions in the joint motion at issue were sufficiently clear and precise to require the Board
on remand to address arguments reasonably raised by the record.
5
Of course, if, for example, after a joint motion for remand is granted by the Court, new law is decided on an
issue that was encompassed within the joint motion for remand or if the Board fails to provide sufficient reasons or bases
for its decision on remand regarding the issue(s) it was obligated to address by the joint motion for remand, those issues
may be raised to the Court on appeal. Other than the argument based on Savage, discussed below, Mr. Carter raises no
arguments regarding the Board's reasons or bases for its decision.
11
In examining the July 2010 joint motion for remand, the Court finds that the parties agreed
that the September 2009 Board decision contained two errors which they, by implication, considered
potentially prejudicial: (1) The Board failed to provide adequate reasons or bases for discounting
favorable private medical evidence and (2) the Board failed to provide adequate reasons or bases for
rejecting lay statements made by Mr. Carter and his wife. R. at 44-45. However, the joint motion
further provides that "the Board should fully assist [Mr. Carter] with his claim by reexamining the
evidence of record and seeking any other evidence that is necessary to support its decision. See
Fletcher v. Derwinski, 1 Vet. App. 394 (1991)." R. at 46 (emphasis added). This is about as clear an
expression of an enforceable provision as can be identified. As discussed above, the parties could
have limited the Board's duties on remand by using clear language describing the limitation. The
terms used would need to be sufficiently clear to be understood by the Board and, should the Board's
compliance be questioned, to be enforceable by the Court. Here, however, the parties chose to
require the Board to examine the entire record for any issues reasonably raised therein.
iv. Mr. Carter's Three Newly Raised Arguments
The Court will now address Mr. Carter's three assertions of Board error: Whether the Board
(1) failed to adjudicate his claim based on the theory that he is entitled to benefits on a direct basis,
(2) erred by relying on inadequate VA medical opinions, and (3) failed to seek clarification of a
private medical examination report. The Court will review these issues based on the record as a
whole, including the terms of the joint motion for remand.
There is no dispute that upon his entry to service, the Army noted that Mr. Carter had a back
condition. The record reflects that Mr. Carter's claim for benefits has been processed as a claim for
aggravation of that back condition. In support of his argument that a claim for benefits on a direct
basis was reasonably raised by the record, Mr. Carter points to an in-service medical record dated
January 31, 1966, noting an injury to the L-5 vertebra. He asserts that this is an injury separate from
the back condition that pre-existed service and that it occurred when he fell off the back of a "5-ton
truck on December 22, 1965." Appellant's Initial Br. at 5-6 (citing R. 693-94).
The record, however, reflects that Mr. Carter reported falling off a 5-ton truck on December
22, 1966, close to 11 months after the January 1966 notation of an L-5 injury. Moreover, as the
Secretary points out, a statement from Mr. Carter's private doctor noted that his L-5 condition
12
"pre-dated his service time." R. at 296. Finally, Mr. Carter did not raise the issue of entitlement to
benefits on a direct basis on remand. The joint motion for remand specifically provided that Mr.
Carter "contends that his low back disorder was aggravated by service." R. at 43 (emphasis added);
see also R. at 45 ("Moreover, in its analysis, the Board noted that [Mr. Carter] and his spouse
contend that his low back disorder was aggravated during military service."). Nothing in the joint
motion indicates that Mr. Carter's back injury was incurred in service.
Given the scope of the joint motion for remand and the scant record evidence possibly raising
the issue, Mr. Carter fails to demonstrate that his claim for benefits for his back disorder on a direct
basis was reasonably raised by the record or that the Board erred by not addressing this claim. See
Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden
of demonstrating error on appeal); see also Robinson, 557 F.3d at 1362.
With regard to Mr. Carter's second argument, the Court similarly finds that the Board did not
err by failing to sua sponte address whether the May 2006 and November 2007 VA examination
reports were inadequate based on a now-alleged failure of the examiners to consider Mr. Carter's lay
statements upon separation from service.6 Here, the record reflects that both VA examiners reviewed
the record in forming their opinions and, in the absence of clear evidence to the contrary, medical
examiners are presumed to be competent to render such opinions and the Board is entitled to rely on
their reports absent a challenge thereto. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir.
2011); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). In light of this fact, the Court
concludes that Mr. Carter fails to demonstrate that any inadequacy in these reports was reasonably
raised by the record. See Robinson, 557 F.3d at 1362. Further, because Mr. Carter was represented
and counsel did not raise the adequacy of these medical opinions in the July 2010 joint motion or
before the Board on remand, and because those medical opinions were in the record at the time of
the joint motion, Mr. Carter fails to demonstrate error in this regard. See Hilkert, 12 Vet. App. at 151.
Mr. Carter's third argument is based on this Court's decision in Savage. Mr. Carter contends
that the Board should have sought clarification of his private doctor's May 2006 opinion before
6
The Court notes that, although Mr. Carter refers to a November 2011 VA examination, given that there is no
such examination in the record and that the Board decision on appeal is from February 2011, it appears that he intended
to dispute the November 2007 VA examination.
13
assigning it less weight than the May 2006 and November 2007 VA examination reports because the
assignment of less weight was based on a lack of clarity as to whether the private doctor reviewed
Mr. Carter's treatment records. Mr. Carter, however, misunderstands Savage.
In Savage, the Court explicitly limited VA's duty to seek clarification of private medical
reports to situations where "the missing information is relevant, factual, and objective–that is, not
a matter of opinion." 24 Vet. App. at 270. Specifically, the Court held that when a private medical
report is the only evidence on a material issue, and material medical evidence can no longer be
obtained as to that issue, yet clarification of a relevant, objective fact would render the private
medical report competent for the assignment of weight, the Secretary must attempt to obtain such
clarification. Id. at 267.
Here, the record contains two VA medical reports that address the precise issue discussed by
the private examiner's report, such that, even without the report, there is competent medical evidence
answering the question at issue. Additionally, the Board did not reject the private examiner's report;
rather, it assigned less weight because the doctor had not explained whether he had reviewed the
entire record. Under such circumstances, where there are competent medical records that adequately
address Mr. Carter's condition, the Secretary was not required to seek clarification of the private
doctor's opinion. Accordingly, the Court concludes that Mr. Carter has not satisfied his burden of
demonstrating error on appeal. See Hilkert, 12 Vet. App. at 151.
B. Notice and Opportunity to Submit Additional Argument and Evidence
In Mr. Carter's supplemental memorandum, he argues that the Board failed to provide his
current representative, Attorney Vanhoose, with sufficient notice and opportunity to submit
additional argument or evidence before the Board on remand. He asserts that the Board erroneously
mailed the 90-Day Letter to his former representative, Disabled American Veterans, and listed that
organization as his current representative on the February 2011 decision. Accordingly, he contends
that he was unable to exhaust his administrative remedies prior to appealing this matter to the Court.
The Court disagrees.
Attorney Vanhoose has conceded that she was in possession of the 90-Day Letter in
December 2010, when she received a copy of Mr. Carter's claims file, at least 67 days before the
Board issued its decision in February 2011. See Oral Argument at 3:00-6:00; see also R. at 3. At oral
14
argument, Attorney Vanhoose stated that she did not review the claims file until after the February
2011 Board decision had issued. Id. The mere fact that Attorney Vanhoose chose not to review Mr.
Carter's claims file immediately upon receipt does not demonstrate a lack of notice that Mr. Carter's
appeal was returned to the Board for adjudication following the joint motion for remand. In fact,
when the joint motion for remand was granted by the Court, Attorney Vanhoose had notice that Mr.
Carter's claim was no longer before the Court and had returned to the Board.
The Court has held that notice errors can be cured by demonstrating actual receipt. Matthews
v. Principi, 19 Vet. App. 23, 29 (2005) (holding that appellant's counsel's receipt of the appellant's
claims file in August 1997 that included a copy of the Statement of the Case "was sufficient to cure
any potential defect in the Secretary's mailing of the [Statement of the Case] in August 1996 to the
appellant's then-representative"); Clark v. Principi, 15 Vet. App. 61, 64 (2001) (holding that the
Board's "mailing defect was cured by the appellant's actual receipt of a copy of the June 1999 Board
decision in January 2000"); cf. Hauck v. Brown, 6 Vet. App. 518, 519 (1994) (stating that notice
defects are not overcome where there is no evidence of actual receipt). Here, Attorney Vanhoose had
actual receipt of the 90-Day Letter when she received Mr. Carter's claims file in December 2010.7
See Oral Argument at 3:00-6:00. She also negotiated for, and was successful in obtaining, a return
of the appeal to the Board in the July 2010 joint motion for remand. Thus, Attorney Vanhoose had
ample time to take action and contact the Board prior to its February 2011 decision, but chose not
to do so.
Although the Board issued its decision less than 90 days after Attorney Vanhoose's receipt
of the claims file, she acknowledged that she did not receive the Board decision until December
2011. See Appellant's March 27, 2012, Opposition to Motion to Dismiss. Accordingly, Attorney
Vanhoose's decision not to submit arguments to the Board cannot be said to have been influenced
by issuance of the February 2011 Board decision. Whether by error or omission or a conscious
decision not to act, she simply did not do so. During the 12-month period between December 2010
and 2011, Attorney Vanhoose could have raised arguments to the Board and the Board would have
7
Absent any argument to the contrary, the Court will presume that Mr. Carter also received a copy of the August
2010 90-Day Letter in its normal course. See Sthele v. Principi, 19 Vet. App. 11, 16 (2004) (stating that the Court has
long "recognized that '[t]here is a presumption of regularity under which it is presumed that government officials "have
properly discharged their official duties"'") (quoting Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992)).
15
been required to consider them, despite the Board's issuance of its decision during that period.
Accordingly, the appellant's counsel of record had notice and an opportunity to participate and
submit arguments to the Board before the matter was readjudicated by the Board and could have
participated during the more than one-year period before she apparently received notice in December
2011 of the Board's readjudication. Therefore, neither Mr. Carter nor counsel were prevented from
presenting additional argument or evidence, but rather opted not to do so.
With regard to the contention that the February 2011 Board decision is void because the
Board listed the wrong representative, this argument is not persuasive. The misidentification of Mr.
Carter's representative on the cover of the Board decision does not alter the substance of the decision.
Rather, the misidentification relates only to when Attorney Vanhoose received notice of the decision,
thus, beginning the 120-day period during which a timely appeal could be filed.8
Here, Attorney Vanhoose asserted, and the Secretary subsequently conceded, that she did not
receive actual notice of the February 2011 Board decision until December 2011. See Appellant's
March 27, 2012, Opposition to Motion to Dismiss; see also Secretary's Motion to Withdraw Motion
to Dismiss. Thus, Mr. Carter had 120 days from that date of actual receipt to file his Notice of
Appeal. See Ashley v. Derwinski, 2 Vet. App. 62, 65-67 (1992). Mr. Carter filed his Notice of Appeal
with the Court on January 19, 2012, well within the 120 days. Therefore, the Court found that Mr.
Carter's Notice of Appeal was timely. Consequently, the Court cannot conclude that the Board's
error–listing Mr. Carter's previous representative on the February 2011 decision–is prejudicial or
somehow renders the decision void. See Sellers v. Shinseki, 25 Vet. App. 265, 274 (2012) (explaining
that the issue of how notice was received by the parties is moot where actual receipt serves to
establish finality for purposes of appeal to this Court); see also Conway v. Principi, 353 F.3d 1369,
1374 (Fed. Cir. 2004).
8
See 38 U.S.C. § 7266 (noting that "a person adversely affected by [a decision of the Board] shall file a notice
of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to [38 U.S.C.]
section 7104(e)," which requires the Board to mail a copy of its decision to the claimant and any authorized
representative).
16
C. Summary
The Court now holds that when represented parties enter into a joint motion for remand of
an appeal from this Court to the Board, the parties must give clear direction to the Board of the errors
that they agree are raised by the record and specify what further action the Board must take with
respect to the claim. Further, the degree to which the joint motion for remand relieves the Board of
the duties it possesses will be determined by the terms of the joint motion for remand in the context
of the other facts present in the case. In this case, because it is clear that Mr. Carter did not surrender
the right for a new record review by the Board–indeed he preserved it–the Board was required to
address issues reasonably raised by the record and, as such, was required to address issues identified
by such review, as well as those matters specified in the joint motion for remand. In determining
whether an issue was reasonably raised by the record, the Board also considers the joint motion for
remand, which is part of the record. This rule reconciles the various goals behind joint motions for
remand, including, most importantly, assisting veterans in obtaining their benefits in the most
expeditious manner possible.
In sum, the Court wishes to make clear that the intended effect of this decision is not to
discourage joint motions for remand. On the contrary, the Court understands and appreciates their
importance. However, the Court cautions against remands merely for the sake of remands. Judicial
efficiency is not increased when counsel enters into a joint motion for remand before reviewing a
client's claims file or record and fails to provide guidance to the Board concerning its responsibilities
on remand. Remands of such ilk cause unnecessary delay, waste scarce resources, and are harmful
to the entire system, including to the Court, VA, and, most importantly, the veteran.
IV. CONCLUSION
Upon consideration of the foregoing, the February 18, 2011, Board decision is AFFIRMED.
KASOLD, Chief Judge, concurring in part and dissenting in part: I fully concur in the Court's
(1) holding today that the terms of a joint motion for remand (JMR) are for consideration when
determining what issues might reasonably be raised by the record, as well as the Court's application
17
of that holding, and (2) application of Savage v. Shinseki, 24 Vet. App. 259 (2011), to the facts in this
case.
I cannot agree, however, with the majority's view of professional responsibility with regard
to managing a case. Succinctly stated, the Secretary confirmed at oral argument that, with regard
to claims remanded by the Court, it is his practice to send claimants and counsel a letter informing
them that they have 90 days to submit additional evidence before the Board will render its decision.
Given this practice, I believe it is well within the parameters of competent representation and proper
case management that an attorney practicing before this Court and aware of the Secretary's practice
might wait for the Secretary's 90-day letter before reviewing a claims file after a matter has been
remanded to the Board and before finalizing the evidence and argument counsel might wish to
present.
In finding otherwise, the majority essentially requires counsel to examine a claims file for
such a letter, just in case the letter was sent to the wrong counsel, as was the case here. There
certainly is lore about VA errors, but I do not believe even that rises to the level of requiring an
appellant's counsel to search for a misdirected 90-day letter that counsel is not aware has been issued.
Rather, the Secretary erred in this case when he sent a 90-day letter to the wrong
representative, and that error was the cause of Mr. Carter's counsel not being provided the properly
anticipated notice prior to issuance of the Board decision now on appeal – notice that indisputably
is the practice of the Secretary. The lack of notice, in turn, is why Mr. Carter's counsel did not
present additional argument below. Indeed, had counsel for Mr. Carter been provided the 90-day
notice, she could have raised the two issues that are raised in this appeal but – in the context of the
parties' JMR without subsequent argument presented below – not reasonably raised by the record.
The 90-day notice letter also would have permitted counsel to timely focus on Mr. Carter's claim and
secure a medical opinion within the 90-day notice period, which practice, incidentally, would
provide a more current opinion than one obtained immediately after a Court remand and well before
issuance of the 90-day letter provided by the Secretary.9
9
The majority also places emphasis on the fact that Mr. Carter's counsel did not review the claims file for more
than 12 months after receiving it, but such emphasis is a red herring. Either the Secretary has a practice of providing a
90-day notice letter or he does not. Either counsel can rely on that or they cannot.
18
As to the majority's reliance on Matthews v. Principi, 19 Vet. App. 23, 29 (2005), it is
misplaced. Yes, Matthews held that actual receipt of a notice in a claims file may cure a potential
notice defect in the original mailing of that notice, and rejected an argument that an appellant's
counsel should not be required to search the contents of the claims file in order to preserve a
veteran's rights to appeal. Id. But, Matthews involved a claims file that was forwarded to a newly
retained counsel who knew a Statement of the Case (SOC) had been issued before he requested and
received the claims file, such that the reasonably prudent counsel would know that the SOC should
be contained in the claims file. In those limited circumstances, receipt of the claims file cured any
defective mailing of the SOC to the previous representative. Id. at 25, 29. Matthews did not involve
a counsel who secured a remand to the Board, the Secretary's practice of providing a 90-day letter
before a Board decision is rendered, and no knowledge on the part of counsel that a 90-day letter had
been issued.
In sum, Mr. Carter was denied fair process and a meaningful opportunity to participate in his
claim, and this matter should be remanded to now provide that process and opportunity. See Haney
v. Nicholson, 20 Vet. App. 301, 305 (2006) (Secretary "is required to provide fair process in the
adjudication of claims" (citing Austin v. Brown, 6 Vet. App. 547 (1994))); Thurber v. Brown, 5
Vet. App. 119, 122-26 (1993) (noting general principles of fair process and stating that "VA's
nonadversarial claims system is predicated upon a structure which provides for notice and an
opportunity to be heard at virtually every step in the process"); see also Wagner v. United States, 365
F.3d 1358, 1365 (Fed. Cir. 2004) ("Where the effect of an error on the outcome of a proceeding is
unquantifiable, however, we will not speculate as to what the outcome might have been had the error
not occurred."); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (finding prejudice when error
"could have altered" the Board's determinations); Overton v. Nicholson, 20 Vet. App. 427, 435, 444
(2006) (any error depriving a claimant of "a meaningful opportunity to participate effectively in the
processing of his or her claim . . . must be considered prejudicial" and remanding where claimant
was not able to meaningfully participate in the adjudication of his claim).
19