Sucic v. McDonald , 640 F. App'x 901 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACK SUCIC,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7134
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-0158, Judge William Green-
berg.
______________________
Decided: February 16, 2016
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
RENEE GERBER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHNER, JR.,
MARTIN F. HOCKEY, JR.; DAVID J. BARRANS, BRIAN D.
2 SUCIC v. MCDONALD
GRIFFIN, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
Before MOORE, REYNA, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge REYNA.
Dissenting opinion filed by Circuit Judge WALLACH.
REYNA, Circuit Judge.
Jack Sucic, a veteran, seeks an early effective date for
a grant of service-connected disability compensation. The
U.S. Court of Appeals for Veterans Claims determined
that the Board of Veterans’ Appeals did not err in denying
Mr. Sucic’s request for an earlier effective date. For the
reasons set forth below, we reverse the determination of
the U.S. Court of Appeals for Veterans Claims and re-
mand for further proceedings.
BACKGROUND
Mr. Sucic served honorably in the United States Ma-
rine Corps from July 1973 to October 1984. In June 1992,
Mr. Sucic filed a claim for a nervous condition and post-
traumatic stress disorder (“PTSD”). The Department of
Veterans Affairs’ (“VA”) regional office denied the PTSD
claim in December 1992. J.A. 14–15. Three months later,
in March 1993, Mr. Sucic submitted a statement via VA
Form 21-4138, informing the VA that he had been receiv-
ing treatment for an ongoing nervous condition since
March 1985. J.A. 16. In that submission, Mr. Sucic noted
that he had received treatment at a VA medical center in
Columbia, Missouri. Mr. Sucic did not formally appeal
the regional office’s 1992 decision on his PTSD condition,
and that decision became final in December 1993.
Subsequent to December 1993, Mr. Sucic obtained the
assistance of a non-attorney veterans support group and
appealed a regional office decision concerning several
SUCIC v. MCDONALD 3
claims for compensation that were unrelated to his PTSD
claim. In the appeal, Mr. Sucic also raised the PTSD
service connection issue. In a July 1995 decision, the
Board of Veterans’ Appeals (the “Board”) referred the
PTSD issue to the regional office for “appropriate action.”
The veteran has further contended that service
connection is warranted for post-traumatic stress
disorder (PTSD). Service connection for this disa-
bility was denied in a December 1992 rating ac-
tion with notice in January 1993 and no
disagreement received thereafter. Such issue was
not developed for appellate review and no action
by the Board is warranted. It is referred to the
Department of Veterans Affairs (VA) Regional Of-
fice (RO) for appropriate action.
J.A. 18–22 (emphases added). The Board also instructed
two specific tasks to the regional office: obtain copies of
the treatment records from the medical center in Colum-
bia, Missouri, and afford Mr. Sucic an opportunity to
receive a surgical exam for a non-combat shrapnel
wound. 1 The Board informed Mr. Sucic that “[n]o action
is required of the veteran or his representative until they
receive further notice.” J.A. 20–21. The regional office,
however, took no further action on the referral of the
PTSD claim, and Mr. Sucic did not receive notice or
otherwise hear from the regional office about the referral.
1 As directed by the Board, the regional office ob-
tained a VA hospital discharge summary from the medical
center in Columbia, Missouri, showing that Mr. Sucic had
been hospitalized from March to April 1993 for diagnoses
involving alcohol and cannabis abuse, with no other
psychiatric disorder identified. J.A. 68–69, 73. The VA
made no specific factfinding concerning the discharge
summary in connection with Mr. Sucic’s PTSD disability
claim.
4 SUCIC v. MCDONALD
In January 2003, Mr. Sucic filed another statement in
support of his PTSD claim. After reviewing the state-
ment, the VA considered the claim reopened with new
evidence. In 2008, the VA awarded Mr. Sucic a disability
rating of 100% for his PTSD with an effective date of
January 2003. J.A. 3.
In 2008, Mr. Sucic filed a claim for an earlier effective
date for his PTSD disability, which resulted in appeals
before the Board and the U.S. Court of Appeals for Veter-
ans Claims (the “Veterans Court”). In the appeal before
the Veterans Court, Mr. Sucic and the government filed a
joint motion to remand on grounds that the Board had
failed to adequately address whether the PTSD claim was
left pending by the 1995 referral. J.A. 3.
On remand, Mr. Sucic argued that the effective date
for his PSTD disability should be 1992 because his state-
ment submitted on VA Form 21-4138 in March 1993
triggered his first 1992 claim for a PTSD disability. Mr.
Sucic also argued that the Board’s 1995 referral recog-
nized the significance of his March 1993 submission. The
Board rejected those arguments:
The Board has reviewed the record but finds no
document during the intervening period between
the final December 1992 [regional office] decision
and the date the [regional office] received the Vet-
eran’s petition to reopen his claim on January 24,
2003, which could be construed as either an in-
formal or formal claim for service connection for
PTSD or any other diagnosed psychiatric disorder.
J.A. 78. The Board concluded that the reference to PTSD
in its 1995 referral was “misplaced” and that the regional
office had “reviewed the issue, determined that there was
no claim and, therefore, had no action to take.” J.A. 76.
On September 5, 2012, the Board issued its remand
determination and denied Mr. Sucic’s entitlement to an
SUCIC v. MCDONALD 5
earlier effective date on grounds that he failed to submit
evidence of PTSD within the appeal period subsequent to
the regional office’s 1992 decision. J.A. 66–81.
Mr. Sucic appealed the Board’s remand determination
to the Veterans Court on January 16, 2013. J.A. 1–5. On
appeal, Mr. Sucic argued that a referral by the Board
necessarily meant that he had submitted a proper claim
in 1995, and that the VA’s inaction on his pending claim
amounted to a procedural error. Mr. Sucic asserted that
because the VA committed procedural error, his claim is
not final and is not adjudicated until the VA corrects the
procedural error. AG v. Peake, 536 F.3d 1306, 1311 (Fed.
Cir. 2008). The Veterans Court disagreed, finding that
because Mr. Sucic had not submitted new or material
evidence before 2003, the Board’s decision was final and
there was no claim pending. The Veterans Court also
determined that under 38 C.F.R. § 19.9 (1995), the re-
gional office was not required to adjudicate the Board’s
referral because that section governed “remands” and not
referrals.
Mr. Sucic appeals. We have jurisdiction under 38
U.S.C. §§ 7292(a), (c).
STANDARD OF REVIEW
Our standard of review in this case is limited. We re-
view de novo legal determinations by the Veterans Court.
Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991).
We have jurisdiction over all relevant questions of law,
including interpretations of constitutional and statutory
authority. 38 U.S.C. § 7292(d)(1). We set aside any
decision by the Veterans Court that is arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law; contrary to constitutional right, power,
privilege, or immunity; in excess of statutory jurisdiction,
authority, or limitations, or in violation of a statutory
right; or without observance of procedure required by law.
Id. Except as to constitutional issues, we cannot review
6 SUCIC v. MCDONALD
challenges to a factual determination or challenges to a
law or regulation as applied to the facts of a particular
case. Id. § 7292(d)(2).
DISCUSSION
On appeal, Mr. Sucic argues that the referral by the
Board obligated the VA to extend Mr. Sucic certain proce-
dural safeguards, including a duty to investigate the
claim, review evidence, and make a determination on the
claim. See 38 C.F.R. § 19.9 (1995). Mr. Sucic argues that
the regional office’s inaction following the referral
amounted to procedural error because no action was
taken and his claim was left pending with no adjudica-
tion. Finally, Mr. Sucic argues that the VA’s instruction
for him not to take any action until he heard back from
the VA prevented him until 2003 from submitting any
additional evidence in support of an earlier effective date,
and is further indication of an open, pending claim.
The government concedes that the regional office did
not review or consider Mr. Sucic’s referred PTSD claim
until January 2003. The government asserts that the
regional office took no action because there was no evi-
dence in the record of a pending PTSD claim.
The government argues that Mr. Sucic confuses the
duties assumed by the VA pursuant to a “remand,” as
opposed to a “referral,” by the Board. The government
asserts that 38 C.F.R. § 19.9 (1995) applies to remands
only and not referrals. As such, the regulation requires
the Board to specify the action to be taken by the regional
office on remand, but it is silent as to any procedural
safeguards under referrals.
We hold that the VA committed procedural error by
failing to take action on the claim that was referred to it
by the Board. The failure denied Mr. Sucic an opportuni-
ty to develop the record, and the failure left pending and
un-adjudicated his claim for an earlier effective date.
SUCIC v. MCDONALD 7
We find persuasive Mr. Sucic’s arguments that the re-
ferral by the Board raised procedural safeguards that the
VA failed to implement. In 2011, the VA amended § 19.9,
leaving the provision on remands materially the same,
while adding a new subsection for referrals:
Referral. The Board shall refer to the agency of
original jurisdiction for appropriate consideration
and handling in the first instance all claims rea-
sonably raised by the record that have not been
initially adjudicated by the agency of original ju-
risdiction, except for claims over which the Board
has original jurisdiction.
38 C.F.R. § 19.9(b) (2011) (emphasis added). The plain
language of the new regulation recognizes that a referral
is made to address pending un-adjudicated claims and
requires the Board to direct the regional office to give the
claim “appropriate consideration,” without specifying the
action to take.
The government is correct that § 19.9(b) did not exist
in 1995 when the referral was made. During the notice-
and-comment process leading to the adoption of § 19.9(b),
the VA indicated in the Federal Register that the ra-
tionale for providing a new separate subsection for refer-
rals was to codify the Board’s pre-2011 practice
concerning referrals:
We proposed to amend 38 C.F.R. § 19.9(b) to ar-
ticulate the Board’s practice of referring to the
AOJ for appropriate action unadjudicated claims
that have been reasonably raised by the record,
except for claims over which the Board has origi-
nal jurisdiction. . . . The final rule we are adopting
by this rulemaking merely codifies the Board’s re-
ferral practice in regulation.
76 Fed. Reg. 17,545 (Mar. 30, 2011).
8 SUCIC v. MCDONALD
In view of the foregoing, the VA is incorrect that the
1995 referral required no action and that its failure to
review the referred claim was not procedural error. Prior
to 2011, 38 C.F.R. § 19.9 (1995) spoke to “remands,” but
not “referrals,” and it required the Board to dictate the
exact action for the regional office to take on remand. 38
C.F.R. § 19.9 (1995). The regulation was amended to
codify the Board’s practice as to referrals, which were
made with no explicit statement of action to be taken
because the matter was considered pending and the
precise action necessary to adjudicate the pending claim
was a first instance decision by the agency.
The VA’s pre-2011 practice concerning referrals is al-
so reflected in the decisions of the Veterans Court. The
Veterans Court has concluded that a referred claim is the
recognition of an un-adjudicated claim requiring initial
adjudication by the regional office before the Board has
jurisdiction. Godfrey v. Brown, 7 Vet. App. 398, 409 (Vet.
App. 1995) (recognizing the need for a regional office to
adjudicate a pending claim later referred to it). According
to the Veterans Court, and as we have recognized, unlike
remands, referrals do not provide specific instructions to
the regional office because the regional office must take
action to adjudicate the claim before it can be properly
reviewed by the Board. See, e.g., Brown v. West, 203 F.3d
1378, 1380 (Fed. Cir. 2000) (describing the affirmative
actions taken by a regional office after receiving a 1991
referral for “appropriate consideration” of a claim).
The government argues that Mr. Sucic was required
to submit a formal claim in writing in order for a pending
claim for adjudication to exist. This is not correct. As we
explained in Reeves, and as reflected in the regulations in
effect in 1995, “any communication” can qualify as an
informal claim. Reeves v. Shinseki, 682 F.3d 988, 993
(Fed. Cir. 2012) (citing Rodriguez v. West, 189 F.3d 1351,
1353 (Fed. Cir. 1992)). A writing need only demonstrate
intent to apply for benefits and identify the particular
SUCIC v. MCDONALD 9
benefits sought. Id. As the VA concedes, the record does
not reflect what occurred in the 1995 hearing, apart from
the Board’s recognition of Mr. Sucic’s arguments for an
earlier effective date for PTSD compensation and the
Board’s resulting referral for “appropriate action” on that
claim. That Mr. Sucic did not submit any evidence subse-
quent to that hearing is justifiable given the Board’s
notice to him not to take any further action on his pend-
ing claim.
Veterans and other claimants are entitled to due pro-
cess during VA proceedings. Sprinkle v. Shinseki, 733
F.3d 1180, 1185 (Fed. Cir. 2013) (citation omitted). A
claim for benefits remains pending until the claim is
finally adjudicated. 38 C.F.R. § 3.160(c). A claim is
considered pending if the VA fails to notify the claimant of
the denial of the claim or of the right to appeal an adverse
decision. Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir.
2009) (citing Cook v. Principi, 318 F.3d 1334, 1340 (Fed.
Cir. 2002) (en banc)). “If a claim is left pending without a
final adjudication, the claim may be addressed when a
subsequent claim is adjudicated by the VA, in which case
the effective date for any resulting award of benefits will
be the effective date applicable to the earlier claim.”
Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010)
(citing Adams, 568 F.3d at 960; Myers v. Principi, 16 Vet.
App. 228, 236 (2002)).
We reverse the Veterans Court’s decision denying Mr.
Sucic’s claim for an earlier effective date for his PTSD
disability compensation and remand for further findings
and determinations on the effective date for his PTSD
claim.
REVERSED AND REMANDED
COSTS
Costs to Mr. Sucic.
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACK SUCIC,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7134
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-0158, Judge William Green-
berg.
______________________
WALLACH, Circuit Judge, dissenting.
“[H]ard cases[] make bad law.” N. Sec. Co. v. United
States, 193 U.S. 197, 364 (1904) (Holmes, J., dissenting).
So do bad facts. Haig v. Agee, 453 U.S. 280, 319 (1981)
(Brennan, J., dissenting) (“‘[B]ad facts make bad law.’”).
In this appeal, the majority chooses humanity over unar-
guable fact and settled authority. The concern for hu-
manistic values is admirable, but it is not the law which
binds us. Accordingly, I respectfully dissent.
2 SUCIC v. MCDONALD
I.
This appeal concerns Jack Sucic’s claim for an earlier
effective date for the grant of service connection for post-
traumatic stress disorder (“PTSD”). The majority holds
that the United States Department of Veterans Affairs
(“VA”) “committed procedural error by failing to take
action on [Mr. Sucic’s PTSD] claim that was referred to it”
by the Board of Veterans’ Appeals (“Board”) in 1995. Maj.
Op. at 6–7.
The majority’s conclusion suffers from two critical de-
fects. First, the majority predicates its holding on a fact
that the record does not support—i.e., that a pending
claim existed for the VA to resolve. The Board held, and
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirmed, that the Board’s referral
alone did not transform Mr. Sucic’s PTSD matter into a
pending claim; 1 rather, in the absence of new material
evidence submitted by Mr. Sucic pursuant to 38 U.S.C.
§ 5108 (2012), 2 the Board found that the VA had no duty
to act on the referral. See J.A. 75–76 (Board’s decision);
see also J.A. 4–5 (Veterans Court’s decision). We have no
occasion to revisit that determination, which involves the
application of law to the facts of the case. 38 U.S.C.
§ 7292(d)(2) (“Except to the extent that an appeal under
1 A “pending claim” describes “[a]n application,
formal or informal, which has not been finally adjudicat-
ed.” 38 C.F.R. § 3.160(c) (2012). Unless otherwise noted,
I cite the 2012 version of the VA’s regulations because the
Board issued the decision under review in September of
that year. J.A. 66. As explained below, the VA has since
amended its regulations.
2 “If new and material evidence is presented or se-
cured with respect to a claim which has been disallowed,
[the VA] shall reopen the claim and review the former
disposition of the claim.” 38 U.S.C. § 5108.
SUCIC v. MCDONALD 3
this chapter presents a constitutional issue, the Court of
Appeals may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.”); see Comer v.
Peake, 552 F.3d 1362, 1372 (Fed. Cir. 2009) (“Whether a
veteran has raised a particular claim is a factual deter-
mination, outside the purview of our appellate authority.”
(citations omitted)); Ellington v. Peake, 541 F.3d 1364,
1371 (Fed. Cir. 2008) (“[T]he interpretation of the con-
tents of a claim for benefits [is] a factual issue over which
we d[o] not have jurisdiction.” (citation omitted)).
Second, the majority’s conclusion disregards the pre-
sumption of regularity that attaches to veterans proceed-
ings. “The presumption of regularity supports official acts
of public officers. In the absence of clear evidence to the
contrary, the doctrine presumes that public officers have
properly discharged their official duties.” Butler v. Prin-
cipi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (internal quota-
tion marks and citations omitted). As the Board properly
found, even if the passage in its 1995 decision that re-
ferred the PTSD matter to the VA “created some kind of
duty,” the “presumption of regularity” attached such that
the Board could “assume that the [VA] reviewed the issue,
determined that there was no claim and, therefore, had no
action to take.” J.A. 76. That conclusion seems particu-
larly sound in the absence of any evidence to the contrary
from Mr. Sucic.
The majority’s substitution of its own factual findings
in place of the Board’s will have significant consequences.
For example, the majority’s holding transforms the
Board’s referral of Mr. Sucic’s PTSD matter into an in-
formal claim. 3 In so doing, the majority has created an
3 The VA recently amended its regulations “to re-
quire that all claims governed by VA’s adjudication regu-
lations be filed on standard forms prescribed by the [VA],
4 SUCIC v. MCDONALD
unknown class of claims that promises a log jam at the
VA. Our servicemen and women who “risked both life and
liberty in their military service to this country” deserve a
system that expeditiously resolves their claims, not one
encumbered by rules created through judicial fiat. Sneed
v. Shinseki, 737 F.3d 719, 728 (Fed. Cir. 2013).
II.
The majority also finds that the Veterans Court erred
in its interpretation of 38 C.F.R. § 19.9 (1995). Maj. Op.
7–9. Our precedent requires a different conclusion.
Mr. Sucic generally contends that the Veterans Court
erred in its interpretation of 38 C.F.R. § 19.9 (1995) by
finding that the regulation governs Board remands only;
regardless of the type of claim or posture in which the
claim arises.” See Standard Claims and Appeals Forms,
79 Fed. Reg. 57,660, 57,660 (Dep’t of Veterans Affairs
Sept. 25, 2014) (to be codified at 38 C.F.R. pts. 3, 19, 20).
The VA’s amended regulations took effect on March 24,
2015, and the Federal Register notice does not state that
the amended regulations have retroactive effect. Id.
Thus, claims filed before that date remain subject to the
VA’s former regulations, which contain two provisions
addressing informal claims: 38 C.F.R. § 3.155(a), which
concerns “original informal claim[s] and requires the
informal claim [to] identify the benefit sought and indi-
cate an intent to apply for one or more benefits,” and 38
C.F.R. § 3.157(b)(1), which is “directed to an informal
claim to increase or reopen a previous compensation
determination and permits a medical report to be consid-
ered [as] an informal claim when the report relates to a
disability for which service connection has previously
been established.” MacPhee v. Nicholson, 459 F.3d 1323,
1325–26 (Fed. Cir. 2006) (internal quotation marks,
brackets, footnote, and citations omitted).
SUCIC v. MCDONALD 5
instead, he argues that the regulation also applies to
referrals. Appellant’s Br. 5–11. In so doing, he does not
address the regulation’s text and attempts to elevate
other sources above the provision’s express terms. See id.
That approach ignores the framework under which we
must interpret regulations.
In construing a regulation, we first consider “its plain
language” and “terms in accordance with their common
meaning.” Lockheed Corp. v. Widnall, 113 F.3d 1225,
1227 (Fed. Cir. 1997) (citations omitted). “In doing so, the
court considers ‘the text of the regulation as a whole,
reconciling the section in question with sections related to
it.’” Mass. Mut. Life Ins. Co. v. United States, 782 F.3d
1354, 1365 (Fed. Cir. 2015) (quoting Lengerich v. Dep’t of
the Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2006)). If the
regulation contains “clear and unambiguous” terms, “then
no further inquiry is usually required.” Id. (citing Roberto
v. Dep’t of the Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006)).
Mr. Sucic’s preferred interpretation finds no support
in the clear and unambiguous terms of 38 C.F.R. § 19.9
(1995). Titled “Remand for further development,” the
regulation states in relevant part that under certain
circumstances “the Board shall remand the case to
the . . . [VA], specifying the action to be undertaken.” 38
C.F.R. § 19.9 (1995) (emphasis added). The title and the
text of the regulation confirm that it addresses remands
only. See id. The regulation does not mention referrals,
still less does it address the obligations placed upon the
VA if the Board makes a referral. We would have to
rewrite the regulation to find that its terms address
referrals. As judges, we may not legislate or regulate.
See, e.g., Rotec Indus., Inc. v. Mitsubishi Corp., 215 F.3d
1246, 1258 (Fed. Cir. 2000) (“‘This Court is empowered to
rewrite neither statutes nor regulations, however unwise,
nor does it have the information base nor expertise to do
so effectively.’” (quoting Newport News Shipbuilding &
6 SUCIC v. MCDONALD
Dry Dock Co. v. Garrett, 6 F.3d 1547, 1558 (Fed. Cir.
1993))).
That “remand” and “referral” do not share a common
meaning further supports the Veterans Court’s interpre-
tation. The Veterans Court has found that remands and
referrals address “distinct concepts,” with Board remands
“appropriate whe[n] proper evidentiary development has
not been completed” and referrals “appropriate when [a]
newly raised claim is not in administrative appellate
status.” Locklear v. Shinseki, 24 Vet. App. 311, 316 n.3
(2011) (citation omitted). Moreover, a Board referral does
not afford the same protections as a remand because,
unlike a remand, the Board need not ensure VA compli-
ance with a referral. Reyes v. Nicholson, 21 Vet. App. 370,
379 (2007) (discussing referral obligations); Stegall v.
West, 11 Vet. App. 268, 271 (1998) (discussing remand
obligations). These authorities confirm that the Veterans
Court properly declined to find that 38 C.F.R. § 19.9
(1995) extends to referrals. J.A. 4.
Turning to Mr. Sucic’s specific arguments, he alleges
that 38 C.F.R. § 19.9 (1995) applies to the Board’s 1995
referral of the PTSD claim because a 2011 amendment to
the regulation reflects the VA’s “clear” intent to afford the
same protections to referrals and remands, consistent
with the Board’s “long-standing practice.” Appellant’s Br.
7–8 (citing 38 C.F.R. § 19.9 (2011); Board of Veterans’
Appeals: Remand or Referral for Further Action; Notifica-
tion of Evidence Secured by the Board and Opportunity for
Response, 76 Fed. Reg. 17,544, 17,544 (Dep’t of Veterans
Affairs Mar. 30, 2011) (“2011 Notice”) (to be codified at 38
C.F.R. pts. 19 and 20)). The sources cited do not demon-
strate Veterans Court error.
With respect to 38 C.F.R. § 19.9 (2011), Mr. Sucic does
not address whether the VA meant for the amended
regulation to apply retroactively to 1995 when the Board
referred his PTSD matter. See generally Appellant’s Br.
SUCIC v. MCDONALD 7
Assuming for a moment that it did, neither the amended
regulation’s text nor the notice accompanying its promul-
gation offers support. The amended regulation defines
“remand” and “referral” separately. See 38 C.F.R.
§ 19.9(a) (defining remand), (b) (defining referral) (2011).
Notably, the amended regulation does not extend the
same protections to remands and referrals. Id. § 19.9(a)–
(b) (2011) (explaining that the Board must remand unde-
veloped factual issues that are “essential for a proper
appellate decision,” whereas it will refer other issues to
the VA for “appropriate consideration”). Had the VA
wanted to treat these distinct instructions as coterminous,
it would have promulgated an overlapping regulation.
Similarly, the 2011 Notice does not support the prof-
fered interpretation. The 2011 Notice “provide[s] guid-
ance as to what action the Board must take when it
discovers an unadjudicated claim in the record”—i.e., it
refers the matter to the VA. 76 Fed. Reg. at 17,547 (em-
phasis added). However, the 2011 Notice does not address
what action the VA must take upon receipt of a referral,
nor does it mention the protections that the VA must
afford to the veteran when it receives a referral. See id.
Thus, the 2011 Notice does not support Mr. Sucic’s argu-
ment that 38 C.F.R.§ 19.9 (1995) covers referrals.
Finally, Mr. Sucic alleges that the Veterans Court’s
decision in Godfrey v. Brown, 7 Vet. App. 398 (1995),
confirms that 38 C.F.R. § 19.9 (1995) “was not limited to
remands.” Appellant’s Br. 11. 4 In particular, Mr. Sucic
4 Mr. Sucic also alleges that the Veterans Court’s
“misinterpretation . . . is further demonstrated by the fact
that the decision in Godfrey was made in March 1995 and
the Board decision which made the referral [on his PTSD
matter] was made in July 1995.” Appellant’s Br. 11. The
temporal proximity of the decisions reveals only that the
Veterans Court and the Board decided them four months
8 SUCIC v. MCDONALD
contends that Godfrey held that the VA must adjudicate a
claim referred to it by the Board, just as the VA must
when the Board remands a matter to it. Id. at 8–9. The
Veterans Court did not reach that conclusion in Godfrey.
Instead, it found that 38 C.F.R. § 19.182(a) (1991)5—the
precursor to 38 C.F.R. § 19.9 (1995)—did not apply to
referred claims, only remands. Godfrey, 7 Vet. App. at
409. Accordingly, the Veterans Court found that the
Board properly referred the claim to the VA “without
additional specific instructions.” Id. Thus, Godfrey is
inapposite.
III.
It is a pleasant thing that a veteran will receive addi-
tional consideration about when his benefits should
accrue. It is lamentable that the majority reaches that
result at the expense of settled legal principles.
apart; it does not answer whether one controls the out-
come in the other.
5 The regulation at issue in Godfrey stated that
[w]hen, during the course of review, it is deter-
mined that further evidence or clarification of the
evidence or correction of a procedural defect is es-
sential for a proper appellate decision, the section
of the Board shall remand the case to the agency
of original jurisdiction, specifying the further de-
velopment to be undertaken.
38 C.F.R. § 19.182(a) (1991).