Ivan R. Sellers v. Eric K. Shinseki , 25 Vet. App. 265 ( 2012 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1758
IVAN R. SELLERS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued November 9, 2011 Decided June 26, 2012)
Douglas J. Rosinski, of Columbia, South Carolina, with whom James E. Swiger, of
Centreville, Virginia, was on the brief for the appellant.
James B. Cowden, with whom Will A. Gunn, General Counsel; R. Randall Campbell,
Assistant General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, all of
Washington, D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and HAGEL and SCHOELEN, Judges.
SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed an opinion
concurring in the result.
SCHOELEN, Judge: The appellant, Ivan R. Sellers, through counsel, appeals an April 2,
2008, Board of Veterans' Appeals (Board or BVA) decision in which the Board determined that a
July 14, 1988, rating decision did not contain clear and unmistakable error (CUE). Record (R.) at
18. The Board also confirmed that the appellant was not entitled to an effective date earlier than
February 5, 2004, for service connection for retinitis pigmentosa (RP),1 as found by the January 31,
2005, Houston VA regional office (RO) decision. Id. Both parties filed briefs, and the appellant
filed a reply brief. It was later revealed that a June 1, 2004, rating decision had found CUE in the
July 1988 rating decision and awarded a March 25, 1988, effective date for service connection for
1
"Retinitis Pigmentosa" is "a group of diseases, frequently hereditary, marked by
progressive loss of retinal response . . . , retinal atrophy, attenuation of the retinal vessels, and
clumping of the pigment, with contraction of the field of vision." DORLAND'S ILLUSTRATED
MEDICAL DICTIONARY 1634 (32d ed. 2012) [hereinafter DORLAND'S].
RP. R. at 287-93. A limited remand from this Court to the Board resulted in a June 29, 2011,
supplemental Board decision in which the Board determined that the June 2004 rating decision was
authentic, but only a draft decision. See Ivan Sellers, BVA 08-1758, at 10, 12 (June 29, 2011).
Thereafter, the parties filed supplemental briefs. This appeal is timely, and the Court has jurisdiction
to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Because the Court
finds that the June 2004 RO decision binds VA and the January 2005 RO decision is void ab initio,
the Court will set aside the Board's April 2008 decision and reverse in part and affirm in part the
Board's June 29, 2011, supplemental decision.
I. FACTS
A. Claim for Entitlement to Service Connection for RP
The appellant served on active duty in the U.S. Army from January 1966 to October 1973.
R. at 304. In his November 1965 medical history report, the appellant attested that he had a history
of eye trouble and that he wore eyeglasses. R. at 466-67, 481. The enlistment examination report
observed that the appellant's visual acuity, refraction, pupil equality and reaction, and ocular motility
all appeared in normal condition. R. at 484. These impressions were confirmed in the appellant's
September 1973 separation examination, which concluded that all visual functions were normal.
R. at 454.
Nine days after the appellant's separation examination, an ophthalmology examination was
conducted because he complained of flashing lights in his left temporal field and a restricted field
of vision. R. at 456. The examiner observed that the appellant had suffered visual field contraction
and retinal pigment epithelium (RPE) "defects."2 Id. The examiner concluded, however, that "no
pathology" existed. R. at 456.
In June 1982, a private physician diagnosed the appellant with RP. R. at 500. The physician
described the condition as "a collection of disorders which are characterized by night blindness,
peripheral visual loss, and, in the later stages of the disease, central vision problems, color vision
problems, and reading difficulties." Id. The physician advised that the condition is almost always
2
RPE is the outer pigmented layer of the optical part of the retina that extends from the
entrance of the optic nerve to the pupillary margins of the iris. See DORLAND'S at 1781.
2
hereditary, but that the appellant had "no specific evidence of similar problems in other members of
[his] family." Id.In March 1988, the appellant filed a claim for entitlement to disability compensation for RP
with cataracts. R. at 488-94. In July 1988, the RO issued a rating decision denying the claim. R.
at 451-52. The RO explained the relevant facts as follows:
On separation exam[ination], [the veteran] complained of decreased peripheral vision
and decreased night vision, and op[h]thalmological evaluation also showed
complaints of flashing lights in the left temporal field. No definite pathology was
found. [Private physician] reports show [the veteran] has progressive bilateral
retinitis pigm[e]ntosa and has undergone bilateral catara[c]t extraction. There is no
evidence of eye trauma in service.
R. at 452. The RO concluded that the appellant's condition was a constitutional or developmental
abnormality (CDA) and that it was not aggravated in service. Id. The September 1988 Statement
of the Case (SOC) explained that the appellant's RP was a CDA, and CDAs "can only be service-
connected by aggravation."3 R. at 447. To establish service connection by aggravation, the RO
continued,
[i]t must be actively shown that the condition was made worse by some specific
portion of the veteran's military service and made worse at a rate faster than the
normal progression of the condition. There is no evidence that the veteran's
condition was in any way aggravated by his military service or caused to progress
faster than his normal progression by that military service.
Id. The appellant failed to perfect an appeal and the decision thus became final.
In February 2004, the appellant filed a statement arguing that the July 1988 RO decision was
premised upon CUE. R. at 410-11. VA construed the appellant's filing as both a request to reopen
his claim and a request to revise the July 1988 RO decision because of CUE. R. at 15, 346.
B. The Houston RO's Claim Processing: February 2004 to September 2004
The appellant states that on June 14, 2004, he received a phone call from RO official Cynthia
Canady, who told him that (1) the RO had made a decision on his request to revise the July 1988 RO
3
Our concurring colleague briefly questions whether the VA determination that RP is a
congenital condition, and thus not compensable via in-service incurrence, may stand against the
congressionally mandated presumption of soundness. We do not address this question as it was
not raised by the parties and is not necessary to our decision.
3
decision based on CUE; (2) CUE was found in the July 1988 RO decision; (3) he would receive a
July 1988 effective date with a "one time car allowance"; and (4) he would receive "a letter in about
a week to ten days stating this award."4 R. at 320. A week later, on June 21, 2004, Ms. Canady e-
mailed the appellant's representative and advised him that "VA has made a decision on Mr.
Sellers['s] claim." R. at 540. She asked for an address to which to send "a copy of the rating
decision and notification letter." Id.
That same day, according to a VA report of contact prepared by Ms. Canady, she spoke with
the appellant's wife to "verify dependent information in [the] claim folders." R. at 390. On June 23,
2004, the appellant's representative responded to Ms. Canady's June 21, 2004, e-mail and provided
a Denver, Colorado, street address for the Blinded Veterans Association. R. at 540.
About a week later, the appellant phoned Ms. Canady to ask why he hadn't yet received his
notification letter. R. at 320. She responded that it might take a month to receive the letter, but that
she had completed the payment tabulation. Id. She quoted the appellant a total award figure of
$495,963.03, but she stated that the figure could change because it needed to be reviewed by two
other officials. Id.
In late July 2004, the appellant called Ms. Canady again to check on the status of the
notification letter, but she said that she could not explain why it had been delayed since her
tabulations had been "corrected and verified." Id. Ms. Canady advised that his total award would
be $534,233.33 plus an $11,000 one-time car allowance. Id.
During the second week of September 2004, the appellant again called Ms. Canady to inquire
into the status of the notification letter. Id. Upon investigation, Ms. Canady found that the file had
been with "the rating board" since August 23, 2004, despite the fact that it bore two of the three
signatures needed for disbursement. Id. Ms. Canady said that she could not explain why
transmission had been delayed and that she could not help the appellant any further. Id.
After again inquiring about the status of the letter that same week, the appellant was directed
4
This account comes from a January 11, 2005, letter submitted to VA on behalf of the
appellant by U.S. Senator John Cornyn's office (January 2005 Cornyn Inquiry Letter), which
contains the appellant's typewritten account of his interactions with the Houston RO from June
14, 2004, through December 2004. R. at 319-21.
4
to the Visual Impairment Services Team (VIST) coordinator at the Houston RO. R. at 320-21. The
appellant phoned the VIST coordinator who advised that an issue had arisen regarding the appellant's
effective date and that he would look into it. R. at 321. There is no evidence that any followup was
conducted.
C. The Houston RO's Claim Processing: October 2004 to February 2005
On October 28, 2004, RO Decision Review Officer (DRO) Beverly Cole sought advice from
the VA regional counsel, based in New Orleans, Louisiana, regarding the July 1988 RO decision.
R. at 294-95. In particular, Ms. Cole sought guidance on whether a March 1985 unpublished
General Counsel (GC) opinion was binding and whether it would require the July 1988 RO decision
to be revised based on a finding of CUE. R. at 294.
A regional counsel staff attorney responded to Ms. Cole's request on December 7, 2004,
prefacing her response with the statement that she could not opine on whether the GC opinion would
determine whether the July 1988 RO opinion contained CUE, but explaining that she could "advise
on portions" of the request. R. at 295. The staff attorney also noted that the "claims folder contains
a rating decision dated June 1, 2004." R. at 296. The staff attorney did not, however, comment on
the significance of the June 2004 RO decision's presence in the claims file.
On November 14, 2004, the appellant submitted a letter to the RO in which he stated:
Please allow me to explain some concerns I have about my claim. Having my initial
claim and its appeal denied in 1988 and now having been told my recent appeal was
approved, you can imagine the excitement my family and I have felt . . . . I must
admit my excitement is waning as the months pass by and my phone calls to [the
Houston RO VIST coordinator] haven't been returned.
* * * *
I have been informed that my claim is with the Rating Board. I also understand it's
with the Decision Review Offices. What I don't understand is why my claim received
two of the three necessary signatures and yet it is back to more review . . . . Why the
long delay?
* * * *
I want you to please write me a letter detailing where my claim actually is and how
much longer I should expect [to wait] before my claim is finalized.
R. at 386. There is no record evidence showing that any RO official responded to the appellant's
letter. During the first week of December 2004, the appellant again contacted the RO and, several
5
days later, an RO official advised the appellant that his file had been sent to New Orleans for a legal
opinion. R. at 321. The official explained that there was a legal question whether the effective date
would be 1988 or 1989, and that legal counsel recommended "us[ing] the earlier date," but that VA
nevertheless owed the appellant money and that they would pay him. Id. In the second week of
December 2004, the appellant visited the RO in person and was advised that the effective date for
his evaluation would be February 5, 2004, the date of his CUE request to revise the July 1988 RO
decision. Id.
On December 14, 2004, an RO rating specialist solicited an eye examination from the VA
medical center as to the "[e]tiology/onset" of the appellant's RP. R. at 293, 377-79. At the January
14, 2005, examination, the examiner concluded that the appellant suffered from advanced RP "with
very significant loss of peripheral vision [in] both eyes and small islands of vision remaining [in]
both eyes." R. at 325. The physician concluded that it was
at least as likely as not that the retinitis pigmentosa began to manifest while the
patient was in military service. This is based not only on his own anecdotal
experiences of reduced peripheral and night vision while actively engaged in his
military duties but also based on viewing records of eye exams when he was
separated from military service in September of 1973 during which time he made
similar complaints . . . . As for whether the retinitis pigmentosa was aggravated by
the patient[']s military service, I cannot resolve that issue without resort to mere
speculation.
Id.
On January 31, 2005, the RO issued a decision granting service connection for RP effective
February 5, 2004, but denying the appellant's request to find that the July 1988 RO decision
contained CUE. R. at 352-71. The decision also awarded the appellant entitlement to special
monthly compensation, adapted housing, and automobile and adaptive equipment. R. at 366, 371.
The January 2005 RO decision was signed by two officials: (1) Susan Durkin, and (2) Beverly Cole,
the DRO who had sought an opinion from the VA regional counsel in October 2004. R. at 294, 371.
D. The Appellant's Notice of Disagreement and Subsequent RO Actions
On March 11, 2005, the appellant, through his representative, filed his NOD with the January
2005 RO decision. R. at 332. On May 3, 2005, the appellant filed a statement setting forth more
fully the reasons he disagreed with the RO's denial of his request to revise the July 1988 RO decision
6
based on CUE.5 R. at 286. In particular, the appellant stated:
I am [] submitting a copy of [an] undated VARO letter with rating decision dated
June 1, 2004, as evidence that my effective date should be March 25, 1988, as this
previous decision established. I contend this effective date is based on a Clear and
Unmistakable Error (CUE) . . . .
Id. The June 2004 RO decision that the appellant attached to his correspondence found CUE in the
July 1988 RO decision and granted entitlement to service connection for RP at a 100% evaluation,
effective March 25, 1988. R. at 289, 292. The June 2004 RO decision set forth the reasons for the
decision and a summary of the evidence. R. at 290-91. The June 2004 RO decision also granted
special monthly compensation and entitlement to automobile and adaptive equipment. R. at 292-93.
That decision contained the signatures of three officials: (1) Susan Durkin, who also signed the
January 2005 decision; (2) "L. Spurlock"; and (3) the illegible signature of an official purporting to
sign "for" Paul Black, Chief of the Houston RO.6 R. at 293.
The cover letter that the appellant submitted with the June 2004 RO decision was addressed
to the appellant's representative in Denver, Colorado. R. at 287. The letter is undated, but contains
the stamped signature of Houston RO Chief Paul Black. R. at 287-88. Unlike the June 2004 RO
decision, the cover letter refers only to the appellant's entitlement to automobile and adaptive
equipment.7 R. at 287-88.
However, the letter's "Enclosure(s)" line contains three entries: (1) "VA Form 4107"; (2) "VA
Form 21-4502;" and (3) "Rating Decision." R. at 288 (emphasis added). The letter further explains
"[t]he enclosed VA Form 4107, 'Your Rights to Appeal Our Decision,' explains your right to appeal."
Id. The letter also notes that VA Form 21-4502 is the "Application for Automobile or Other
Conveyance and Adaptive Equipment." R. at 287. The record is not clear as to when or how the
appellant obtained the notification letter or the June 2004 RO decision.
5
The May 2005 statement was received by the RO on June 6, 2005. R. at 286.
6
In its June 29, 2011, supplemental decision, the Board found that the third signer was a
"coach," who "sign[ed] on behalf of the Chief, Veteran's Service Center." See Ivan Sellers, BVA
08-1758, at 5.
7
The record does not contain any rating decision decided prior to the June 2004 RO
decision that granted entitlement to automobile and adaptive equipment.
7
On August 22, 2005, the RO issued an SOC in response to the appellant's March 2005 NOD,
reiterating its January 2005 finding that the July 1988 RO decision did not contain CUE. R. at 200-
25, 249-76. The August 2005 SOC neither mentioned nor acknowledged receipt of the appellant's
May 2005 statement discussing the attached June 2004 RO decision.
On October 14, 2005, the appellant, through his representative, submitted his Substantive
Appeal to the Board. R. at 177-88. This document appealed the August 2005 SOC. The Substantive
Appeal does not mention the May 2005 statement or the June 2004 RO decision. In response to the
appellant's Substantive Appeal, the RO issued a Supplemental Statement of the Case (SSOC) on
April 10, 2006. R. at 173-76. The April 2006 SSOC does not mention the May 2005 statement or
the June 2004 RO decision. R. at 173.
On June 22, 2006, the appellant requested a hearing in connection with his "pending appeal
for effective date and Clear and Unmistakable Error (CUE) for retinitis pigmentosa." R. at 154. At
the December 18, 2006, hearing held at the RO by DRO Marian Peters, the appellant testified that
he had received a call on June 14, 2004, advising him that his request to revise the July 1988 RO
decision based on CUE had been granted and that he would receive a check "for the retroactive
payback of [sic] March 1988." R. at 81. The appellant explained that subsequent attempts to obtain
the retroactive payment based upon the June 2004 RO decision were unfruitful. R. at 81-82. In
response, DRO Peters stated that
we've had the person in our front office [] look at this case; like you were saying you
were called [and told] that it had been approved; that is true. We tried to grant the
benefit from our perspective, but the front office said No! This is an incorrect
decision. As a DRO I cannot overrule what the front office says; however, I am
going to wait until I get your transcript back with everything that you have said in this
hearing today. When I get that transcript back, I'm going to go and see if I can talk
to some people that are in the front office to see if they will listen and see . . . if they
will listen and read what you have told me concerning the law that we should apply
. . . but I as a Decision Review Officer cannot overrule what the front office says
because a decision review officer prior to me was the one that signed off on the rating
granting, saying it was a clear and unmistakable error . . . . I cannot promise you
anything.
R. at 83 (emphasis added).
On June 21, 2007, the RO issued a second SSOC, signed by DRO Dexter Leavitt, in which
it reaffirmed its January 2005 finding that the July 1988 RO decision did not contain CUE. R. at 66-
8
72. The appellant appealed this RO decision. R. at 57.
E. Proceedings Before the Board
On December 17, 2007, the Board conducted a hearing at which the appellant testified as to
his failed attempts to obtain the disability compensation award dictated by the June 2004 RO
decision. R. at 29-30. With respect to the June 2004 RO decision, the appellant stated: "I have a
copy of it, I have the signed signatures and when I showed it to someone [] in the regional office they
were surprised that I had signatures because I'm not supposed to have . . . [the] decision . . . ." R. at
29. The appellant continued that he "was never told why [the June 2004 RO decision] was not
allowed," and that was why he had a "bad taste in [his] mouth." R. at 29-30.
On April 2, 2008, the Board issued a decision denying the appellant's motion to revise the
July 1988 RO decision based on CUE, but failed to acknowledge or discuss the June 2004 RO
decision. R. at 2-18. Instead, the decision focused on the merits of the appellant's motion for
revision based on CUE and earlier-effective-date argument. R. at 4-16.
F. Procedural History on Appeal: The June 2004 RO Decision Revelation
On June 9, 2008, the appellant filed his Notice of Appeal to this Court. The appellant's initial
and reply briefs, prepared by his attorney at the time, failed to mention the June 2004 RO decision.
The record did not include the June 2004 RO decision or any related documents, and it lacked
several documents critical to the appeal, including the August 2005 SOC and the complete January
2005 RO decision.
On January 25, 2011, the Court issued a memorandum decision affirming the Board's April
2, 2008, decision that the July 1988 RO decision did not contain CUE. See Sellers v. Shinseki, No.
08-1758, 2011 WL 219905 (Jan. 25, 2011). On February 10, 2011, the appellant's counsel moved
to withdraw citing the appellant's instruction, and the Court granted his motion 15 days later. The
next day, the appellant filed a motion for panel review pro se, attaching the June 2004 RO decision
as evidence that he was entitled to a March 1988 effective date pursuant to MacKlem v. Shinseki,
24 Vet.App. 63 (2010). See Motion for Panel Review at 3-5, 8-12.
On May 27, 2011, the Court granted the appellant's motion for panel review, withdrew the
January 25, 2011, memorandum decision, and remanded the matter to the Board for the limited
purpose of determining (1) whether the June 2004 RO decision was an authentic document; and (2)
9
whether it was the subject of the Extraordinary Award Procedure (EAP), invalidated by the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) in Military Order of the Purple Heart v.
Secretary of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009) (Purple Heart).
On remand, the same Board member who presided over the appellant's December 2007 Board
hearing and who produced the April 2008 Board decision began by making the following
observations:
[T]he Board notes that the June 2004 document was not of record at the time of the
Board's April 2008 decision. This document was first submitted by the Veteran in
June 2005. This document appears to be a document created by the RO, and shows
that it was signed by three RO personnel (a rating specialist, a decision review
officer, and a "coach" (signing on behalf of the Chief, Veteran's Service Center)),
who determined that the July 1988 decision, which denied service connection for
retinitis pigmentosa, was CUE.
Ivan Sellers, BVA 08-1758, at 5. The Board ultimately concluded that the June 2004 RO decision
was authentic. Id. at 6.
The Board next found that the June 2004 RO decision was not promulgated pursuant to the
EAP. Id. at 9. The Board first explained that the EAP at issue in MacKlem and Purple Heart was
not in effect at the time the June 2004 RO decision was revised. Id. at 10. The Board also found that
nothing indicated that the June 2004 RO decision was subject to an "EAP-like" process. Id. The
Board further observed that there was no basis to show that the RO sought and obtained a
determination from the Compensation and Pension Service or other decisionmaker outside the RO.
Id. at 11. On the contrary, according to the Board:
The evidence shows that the Veteran's claim was adjudicated only by RO personnel,
specifically, the January 2005 grant of his claim was signed by two RO personnel.
He is therefore not shown to have been denied "in person" interaction with the
deciding officials, as required by 38 C.F.R. § 3.103(c)(2).
Id.The Board also found that the June 2004 RO decision was not received "in the regular course
of business" by the appellant:
This document does not bear a date stamp, or any other indication, to show that it
was ever mailed to the Veteran, nor does the Veteran contend[] that he received this
document in the regular course of business as a decisional document. See 38
U.S.C.A. § 5104. This document is not accompanied by a cover letter, nor does it
10
contain any indication that it notified the Veteran of his appellate rights. See 38
C.F.R. § 19.25 (2010). In short, there is nothing to show that this document was
provided to the appellant in the regular course of business as a decisional document.
In this regard, the Veteran has stated that he was advised that his claim had been
granted during telephone conversations with RO personnel in June 2004. See
Veteran's letters, received in January 2005 and August 2010. In his January 2005
letter to his Congressman, he clearly expressed frustration that an award letter had
not been received. The fact that VA did not transmit the June 2004 provisional
document to the Veteran in the normal course of business is a clear indication that
VA did not intend the June 2004 document to be a final decision.
Id. at 10.
The Board ultimately concluded that the June 2004 RO decision "was apparently written up
as a . . . draft decisional document," and was subject to further review, including review informed
by advisory legal and medical opinions. Id. at 11 (emphasis in original). The Board also noted that
receipt of incorrect information from RO personnel alone is not a basis upon which to award
benefits. Id. at 12.
G. Procedural History on Appeal: Supplemental Briefing on the June 2004 RO Decision
In September 2011, the Court required the parties to submit supplemental briefing on two
jurisdictional questions raised by the supplemental Board decision. First, the parties were required
to articulate what transmission from VA to a claimant is considered a "decision" that binds VA field
offices and to discuss whether the June 2004 RO decision constitutes such a decision. September
2011 Briefing Order at 1. Second, the parties were ordered to address whether the presumption of
regularity attached to the manner in which the June 2004 RO decision was approved and transmitted
to the appellant. Id. The parties were also ordered to be prepared to discuss at oral argument
whether an August 2011 revision to 38 C.F.R. § 3.103(c)(1) (2010) would have an impermissible
retroactive effect as applied in this case. Id. at 2.
II. ANALYSIS
A. A Binding RO Decision as Jurisdictional Prerequisite
1. Introduction
This Court's ability to hear and decide cases is predicated upon the parties' timely adherence
to procedural requirements imposed by statute and regulation. See Best v. Brown, 10 Vet.App. 322,
11
325 (1997); see also Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1201-06 (2011). The
requirement that the Court may only review Board decisions over which the Board had jurisdiction,
is the touchstone of the Court's own jurisdiction. See 38 U.S.C. §§ 7104(a) (jurisdiction of the
Board), 7252(a) (jurisdiction of the Court), 7266(a) (Notice of Appeal); see also Jarrell v.
Nicholson, 20 Vet.App. 326, 334 (2006) (en banc). In this vein, the Board is unable to act on a
"matter" absent an appealable, binding RO decision that is adverse to the claimant. 38 U.S.C.
§§ 511(a) (decisions of the Secretary), 7104(a); see also Godfrey v. Brown, 7 Vet.App. 398, 409-10
(1995); Bernard v. Brown, 4 Vet.App. 384, 391 (1993).
For an RO decision to be effective, the RO must provide notice in accordance with section
5104(a). See 38 C.F.R. § 3.104(a) (2011) ("A decision of a duly constituted rating agency . . . shall
be final and binding on all field offices of the Department of Veterans Affairs as to conclusions
based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.
[§] 5104." (emphasis added)). Such notice must, among other things,8 be "provide[d]" to the
claimant and the claimant's representative and include "an explanation of the procedure for obtaining
review of the decision." 38 U.S.C. § 5104(a).
Once notice has been issued pursuant to section 5104(a), the RO may not effect any revisions
to its decision, sua sponte, on the same factual basis,9 without a finding of CUE. 38 U.S.C.
§ 5109A(a); 38 C.F.R. §§ 3.104(a), 3.105(a) (revision of decisions) (2011). Binding the RO at the
time section 5104(a) notice is issued serves to "preclude repetitive and belated readjudication of
veterans' benefit[s] claims." Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). Binding the
RO at such time also activates a claimant's ability to accept its decision or appeal the decision to the
Board. 38 U.S.C. § 7105(a)-(c).
Exercise of this Court's jurisdiction is thus dictated by the RO issuing a binding decision, in
accordance with section 5104(a), which a claimant may appeal. See 38 U.S.C. §§ 7104(a), (b), (c),
8
See section II.A.3, infra, for a full discussion of these requirements.
9
Revisions to final decisions made on different facts must be made pursuant to a finding
of new and material evidence, and because the adjudication is based on a new set of facts it is, in
effect, an adjudication of a new claim. 38 U.S.C. § 5108. There is no dispute that no such
finding was made at any point in this case.
12
7252(a), 7266(a). Any question, therefore, whether the Board improperly acted upon a nonbinding,
unappealable RO decision invokes the Court's independent obligation to police its own jurisdiction:
[J]urisdiction[al] [questions] alter[] the normal operation of our adversarial system.
Under that system, Courts are generally limited to addressing the claims and
arguments advanced by the parties. Courts do not usually raise claims or arguments
on their own. But federal courts have an independent obligation to ensure that they
do not exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press.
Henderson, 131 S. Ct. at 1202 (citation omitted); see also Barnett v. Brown, 83 F.3d 1380, 1383
(Fed. Cir. 1996) (stating that it is a "well-established judicial doctrine that any statutory tribunal must
ensure that it has jurisdiction over each case before adjudicating the merits, that a potential
jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage
in the proceedings, and, once apparent, must be adjudicated" (emphasis added)). The Court is
therefore compelled to resolve all jurisdictional questions before proceeding to the merits of an
appeal.
2. The Jurisdictional Issue Before the Court
This appeal began as a dispute over whether the Board erred in finding that there was no
CUE in the July 1988 RO decision (a determination first made by the RO in a January 2005
decision), but the introduction of the June 2004 RO decision calls into question whether the January
2005 RO decision itself was improperly promulgated. If the June 2004 RO decision is the operative
RO decision, then the Board lacked jurisdiction to entertain the appeal of the January 2005 RO
decision, and, in turn, this Court lacks jurisdiction to review the merits of the April 2008 Board
decision. Cf. Jarrell, 20 Vet.App. at 334; see also Bernard, 4 Vet.App. at 391.
There is no dispute that the January 2005 RO decision did not find, pursuant to § 3.105(a),
that the June 2004 RO decision contained CUE. There is also no dispute that the June 2004 RO
decision is authentic, Ivan Sellers, BVA 08-1758, at 6, and there is no allegation of fraud.
However, the Secretary argues that the June 2004 RO decision is merely provisional because
it lacks indicia of a binding RO decision, including clear evidence that the RO provided the appellant
notice of the decision in accordance with 38 U.S.C. § 5104(a). Secretary's Supplemental (Supp.)
Brief (Br.) at 5-7. The appellant responds that the June 2004 RO decision is binding upon VA
because the record evidence requires the Court to presume that the Houston RO transmitted the
13
decision to the appellant and his representative. Appellant's Supp. Br. at 7-8. The Secretary
maintains, however, that, irrespective of how the appellant received the June 2004 RO decision, an
additional layer of review and authorization was required before it could be released so as to bind
VA. Secretary's Supp. Br. at 10-11.
The Court must determine whether the RO provided section 5104(a) notice of the June 2004
RO decision to the appellant and his representative such that it became a final, binding decision
pursuant to § 3.104(a). The Court will also examine whether the June 2004 RO decision was
promulgated and authorized consistent with RO procedure set forth in VA Adjudication Procedures
Manual M21-1 (M21-1) and whether the June 2004 RO decision retains features of a typical RO
decision.10 In so doing, the Court is empowered to make any finding of fact "crucial to the proper
determination of whether this Court has jurisdiction." Stokes v. Derwinski, 1 Vet.App. 201, 203-04
(1991); see also Evans v. Shinseki, 25 Vet.App. 7, 10 (2011).
3. The Provision of Notice
On remand, the Board found that, although the June 2004 RO decision was authentic, it was
a "draft" decision. Ivan Sellers, BVA 08-1758, at 6, 11. First, the Board explained that the June
2004 RO decision was not accompanied by a cover letter or notice of appellate rights. Id. at 10. The
Board further observed that "VA did not transmit the June 2004 provisional document to the Veteran
in the normal course of business" and this fact "is a clear indication that VA did not intend the June
2004 document to be a final decision." Id. The Secretary echoes the Board's conclusion,
emphasizing that, "[t]o the extent [the] [a]ppellant came into possession of [the June 2004 RO
decision and notification letter] by means other than direct receipt from VA, they would not be in
conformance with the requirements of [section 5104(a)]." Secretary's Supp. Br. at 5-6 (emphasis
added).
The Board and the Secretary misunderstand the facts of this case and the minimum
10
For purposes of this matter, it is unnecessary to determine whether M21-1 provisions
serve as nonbinding guidance for VA adjudicators, see Guerra v. Shinseki, 642 F.3d 1046, 1050-
51 (Fed. Cir. 2011), or whether they have the force and effect of law. See Cohen v. Brown, 10
Vet.App. 128, 139 (1997); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990); see also Morton v.
Ruiz, 415 U.S. 199, 235 (1974); 38 C.F.R. § 19.5 (2011). Therefore, the Court will not reach this
issue.
14
requirements for the content and effective transmission of decisional notice. First, the notice
requirements codified in section 5104(a) and enumerated in 38 C.F.R. § 3.103(b)(1), (f) dictate that
notice of an RO decision shall be "provide[d] to the claimant and to the claimant's representative"
and such notification shall be "in writing." Section 3.103(f) elaborates that
[a]ll notifications will advise the claimant of the reason for the decision; the date the
decision will be effective; the right to a hearing subject to paragraph (c) of this
section; the right to initiate an appeal by filing a Notice of Disagreement which will
entitle the individual to a Statement of the Case for assistance in perfecting an appeal;
and the periods in which an appeal must be initiated and perfected (See part 20 of this
chapter, on appeals).
38 C.F.R. § 3.103(f) (2011); see also 38 C.F.R. § 3.103(b)(1) (adding that notice shall include advice
of the right to representation).
Second, the Board fails to appreciate that the June 2004 RO decision, as submitted with the
appellant's May 2005 statement, was "[e]nclos[ed]" with a notification letter. R. at 287-92. The
notification letter also provided that VA's "Form 4107" was enclosed with the letter, which indicates
that the appellant received notice of his appellate rights as required by § 3.103(b)(1), (f).11 R. at 288;
see, e.g., Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (holding that the Court did not err
"by applying the presumption of regularity to the mailing of a copy of a notice of appeal rights . . .
particularly in light of the [notification letter] which was present in the record"). Thus, the Board's
finding that there was "[no] indication" that the appellant was notified of his appellate rights was
erroneous. Ivan Sellers, BVA 08-1758, at 10; see Pentecost v. Principi, 16 Vet.App. 124, 129
(2002) ("Reversal is the appropriate remedy when there is absolutely no plausible basis for the
BVA's decision and where that decision is clearly erroneous in light of the uncontroverted evidence
in appellant's favor" (citation omitted)).12
11
The notification letter's effectiveness is not undermined because it only mentions the
appellant's entitlement to automobile and adaptive equipment. See R. at 287-88. There is no RO
practice to list all findings in a notification letter where, as here, the rating decision is provided
with the notification letter. See R. at 288-93; M21-1, pt. III, ch. 11, para. 11.09(a)(1). There is
also no evidence of an RO decision prior to June 2004 granting the appellant's entitlement to
automobile and adaptive equipment.
12
The appellant maintains that a written notice of appellate rights is unnecessary where,
as here, a claimant receives a favorable decision. Appellant's Supp. Br. at 12. The inclusion of
15
In addition, our caselaw makes clear that defects of decisional notice are cured when the
record demonstrates that the claimant and his representative actually received notice of the
decision.13 See Clark v. Principi, 15 Vet.App. 61, 62-64 (2001) (holding that 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). Contrary to the Secretary's view, the issue whether VA
directly transmitted decisional notice to the claimant is moot where actual receipt is established. See
Ashley v. Derwinski, 2 Vet.App. 62, 65-67 (1992). Indeed, actual receipt serves to establish finality
for purposes of appeal to this Court. See id. at 67 (holding that the date of actual receipt was the date
on which the 120-day period of section 7266(a) began to run); cf. Tablazon v. Brown, 8 Vet.App.
359, 361 (1995) (holding that, "where VA has failed to procedurally comply with statutorily
mandated requirements, a claim does not become final for purposes of appeal to the Court" and thus,
"there is no final Board decision before us for review").
In Ashley, the Board mailed its decision to the claimant consistent with section 7104(e), but
the Board failed to mail its decision to the appellant's representative. Ashley, 2 Vet.App. at 67.
Rather, a third party – a "State Veterans Claims Agent" – relayed to the representative a copy of the
decision previously mailed to the claimant. Id. at 65. The Court in Ashley held that the defective
transmission of the Board decision to the representative via a third party was irrelevant because the
record established that the representative in fact received the decision. Id. at 67 ("There is no need
for us to decide what the result would have been had [the claimant's representative] never received
the decision."). Similarly, where a claimant demonstrates actual receipt of an RO decision and notice
from either the RO or his representative, there is no question whether such notice is effective and
binding on VA pursuant to section 5104(a) and § 3.104(a).
VA's written notice of appellate rights form with the notification letter moots the appellant's
argument; therefore, the Court need not resolve this issue.
13
The Secretary argues that the notification letter bears inconsistencies with RO
procedures for the dating and filing of final correspondence. Secretary's Supp. Br. at 5; see also
M21-1, pt. III, ch. 11, para. 11.06. As explained above, however, these inconsistencies are
irrelevant where it is established that the claimant and his representative have received notice.
16
In this case, the record at bar provides ample evidence that the appellant and his
representative received the June 2004 RO decision and notification letter, as submitted with the
appellant's May 2005 statement.14 On June 14, 2004, an RO official advised the appellant that a
decision had been rendered and that written notice was forthcoming. R. at 320. In an email to the
appellant's representative on June 21, 2004, an RO official confirmed that a decision had been
rendered and asked that the representative provide a mailing address to which to send a copy of the
"rating decision and notification letter." R. at 540. In response, the representative provided the
Denver, Colorado, street address for his service organization. Id. RO officials prepared a
notification letter, secured the RO Chief's signature, and affixed the Denver, Colorado, street address
to the notification letter. R. at 287-88. In his May 2005 statement to the RO, the appellant
"[e]nclos[ed]" the June 2004 RO decision with the notification letter bearing the Denver, Colorado,
street address provided by the representative. R. at 286-92. The appellant asserted that the June
2004 RO decision and accompanying notification letter demonstrated that the July 1988 RO decision
was "based on a Clear and Unmistakable Error." R. at 286.
Thus, we need not decide how the appellant received the June 2004 RO decision directly
from the RO or from his representative because the facts of this case establish that VA provided
14
The Secretary also speculates that the appellant's representative obtained possession of
these documents during a period of review sanctioned by M21-1, pt. VI, ch. 2, para. 2.05.
Secretary's Supp. Br. at 6. However, the record provides no basis for this theory. As the
Secretary posits, RO procedure permits a claimant's representative to review a rating decision and
discuss any outstanding issues with a rating official at the RO or, with permission from the Chief
of the RO, outside the RO. See M21-1, pt. VI, ch. 2, para. 2.05. The Secretary ignores, however,
the RO's practice, consistent with regulation, of preparing notification letters only at the time of
issuing binding decisions, not when providing for a representative's review of a draft rating
decision. See M21-1, pt. III, ch. 11, para. 11.09(a); 38 C.F.R. §§ 3.103(b)(1), (f), 3.104(a); cf.
M21-1, pt. VI, ch. 2, para. 2.05. Thus, the fact that the RO expressed its intent to send a
notification letter to the appellant's representative 20 days after the rating decision was approved
(R. at 289, 540), and that the notification letter is addressed to the representative (R. at 540), is
clear evidence that he did not obtain the June 2004 RO decision during a period of
prepromulgation review. Moreover, there is no record evidence suggesting that the appellant's
representative traveled from his location in Denver, Colorado, to the RO in Houston, Texas, to
conduct the in-person review contemplated by RO procedure or that the representative was
granted an exemption from the Chief of the RO for offsite review. See M21-1, pt. VI, ch. 2, para.
2.05. The Secretary's speculation must, therefore, be rejected.
17
notice of the June 2004 RO decision in accordance with section 5104(a) and § 3.103(b)(1), (f).
Accordingly, the Secretary's arguments must be rejected and the Board's findings on this issue must
be reversed.
4. The Adjudicative Process and Rating Decision Content
The Secretary also argues that the June 2004 RO decision is not a final, binding decision
because it was not promulgated consistent with RO decision-authorization procedure. The Secretary
repeatedly refers to an additional layer of review, which should have occurred after the designee of
the Chief of the RO signed the June 2004 RO decision, which was required to render the decision
binding, rather than merely "provisional[]." Secretary's Supp. Br. at 10. Specifically, citing to M21-
1 provisions, the Secretary maintains that a "post-determination team" was required to review the
June 2004 RO decision and calculate an "award" (a schedule of payments) before it could be released
to the appellant and bind VA. Secretary's Supp. Br. at 9. In other words, the Secretary asserts that
the appellant and his representative could not be notified until after postdetermination review.
However, even assuming that the M21-1 provisions cited by the Secretary dictated the RO's
conduct here, such provisions do not explicitly establish the sequence in which RO adjudicative tasks
are performed, nor do they demonstrate that an "award" letter must be generated before a "rating
decision" can be transmitted to a claimant and bind VA. Rather, the cited M21-1 provisions merely
(1) describe the organization of RO adjudicative functions; (2) identify the procedures to approve
"rating decisions" granting entitlement to large retroactive awards; (3) discuss the procedures to
authorize "awards" generally; and (4) list requirements for notifying claimants of RO decisions,
including those provided by § 3.103(b), (f).15 These provisions fail to establish that rating decisions
must be delayed at the behest of producing RO "award" letters.
By contrast, the record demonstrates that the decisional content stipulations set forth in M21-
1, pt. VI, ch. 3, paras. 3.08-3.30 are met by the June 2004 RO decision, including the following:
(1) The organization of the decision into "narrative" and "codesheet" sections; (2) inclusion of
"Introduction," "Decision," "Evidence," "Reasons for Decision," and "References" subsections; and
(3) specific evaluation and effective date. R. at 287-93. Moreover, consistent with M21-1, pt. VI,
15
See M21-1, pt. I, ch. 2, paras. 2.01-2.03; M21-1, pt. III, ch. 11, para. 11.09(a); M21-1,
pt. V, ch. 9, para. 9.01; M21-1, pt. VI, ch. 3, para. 3.07.
18
ch. 3, para. 2.04(c), the June 2004 RO decision itself contains two signatures from rating specialists,
and a third from the designee of the Chief of the Veterans Service Center, in accordance with M21-1,
pt. VI, ch. 3, para. 3.07. R. at 293.
5. The Binding June 2004 RO Decision and 38 C.F.R. § 3.105(a)
As discussed above, the June 2004 RO decision is an authentic product of the RO
adjudicative process, it contains content typical of RO rating decisions, and the RO provided notice
of the June 2004 RO decision to the appellant and his representative consistent with section 5104(a)
and § 3.103(b)(1), (f). In light of these facts, the Court must hold that VA is bound by the June 2004
RO decision. See 38 C.F.R. § 3.104(a).
It follows, therefore, that the January 2005 RO decision is void ab initio.16 The January 2005
RO decision is not based on a finding of new and material evidence, see 38 U.S.C. § 5108, nor is it
predicated on a finding of CUE in the June 2004 RO decision, see 38 C.F.R. § 3.105(a), nor did the
RO follow the established procedures for revoking a prior decision. See 38 C.F.R. § 3.105(e). The
RO thus lacked authority to render a decision on the same factual basis as the June 2004 RO
decision, see 38 C.F.R. § 3.104(a), and the Board's exercise of jurisdiction over the January 2005 RO
decision was likewise in excess of statutory authority. 38 U.S.C. §§ 7104(a), (b), (c); see also
Jarrell, 20 Vet.App. at 334; Bernard, 4 Vet.App. at 391.
B. The Applicability of Purple Heart
1. Introduction
The peculiar facts of this case raise an issue that provides an alternative basis upon which to
hold that the Board lacked jurisdiction to entertain the merits of the January 2005 RO decision:
Namely, whether the process by which the RO revised its June 2004 RO decision violates the
appellant's procedural rights, thus rendering the January 2005 RO decision void ab initio. See
MacKlem, 24 Vet.App. at 71 (finding that where an RO decision was revised pursuant to the invalid
EAP, the resulting decision was void ab initio); Purple Heart, 580 F.3d at 1297-98.
The principle announced in Purple Heart and enforced in MacKlem holds that policies that
impinge upon the "veteran's right to participate and respond" while VA revises a decision on the
16
The Secretary's attempt to apply the presumption of regularity to the January 2005
decision must, therefore, fail. Secretary's Supp. Br. at 8.
19
veteran's claims violate 38 C.F.R. § 3.103(c), among other regulations. Purple Heart, 580 F.3d at
1297. To be sure, as the Board determined, the EAP at issue in Purple Heart is not implicated in
this case – the EAP was first instituted in August 2007, more than two years after review of the June
2004 RO decision. Ivan Sellers, BVA 08-1758, at 10. However, the question before the Court, as
the Board recognized, is whether the RO engaged in an "EAP-like" procedure in its review of the
June 2004 RO decision, which, too, would run afoul of the principle announced in Purple Heart.
Ivan Sellers, BVA 08-1758, at 10. Such a question of law is one the Court reviews de novo, without
deference to the Board's conclusions of law. See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en
banc).
2. Law
At the time of the Purple Heart decision, a claimant's "right to participate and respond" was
principally protected by provisions of § 3.103, which stated:
§ 3.103(a) Statement of policy. Every claimant has the right to written notice of the
decision made on his or her claim, the right to a hearing, and the right to
representation . . . and it is the obligation of the VA to assist a claimant in developing
the facts pertinent to the claim . . . . The provisions of this section apply to all claims
for benefits and relief, and decision thereon, within the purview of this part 3.
* * * *
§ 3.103(c)(1). Upon request, a claimant is entitled to a hearing at any time on any
issue involved in a claim . . . . VA will provide one or more employees who have
original determinative authority of such issues to conduct the hearing and be
responsible for establishment and preservation of the hearing record.
* * * *
§ 3.103(c)(2). The purpose of a hearing is to permit the claimant to introduce into the
record, in person, any available evidence which he or she considers material and any
arguments or contentions with respect to the facts and applicable law which he or she
may consider pertinent . . . . It is the responsibility of the employee or employees
conducting the hearings to explain fully the issues and suggest the submission of
evidence which the claimant may have overlooked and which would be of advantage
to the claimant's position.
Purple Heart, 580 F.3d at 1296-97 (citing 38 C.F.R. § 3.103(a), (c)). The Federal Circuit in Purple
Heart also cited § 3.105, under which, in the event of a proposed reduction in granted benefits, the
RO must give the beneficiary "60 days for the presentation of additional evidence to show that [the]
benefits should be continued at their present level." Id. (citing 38 C.F.R. § 3.105(e), (f), (g)). The
Federal Circuit observed that these procedural protections were threatened by the EAP:
20
[B]y the new procedure the veteran does not have a hearing in the presence of the
persons who now have final decisional authority for [RO] decisions. It is not disputed
that there is no opportunity to provide additional evidence "which would be of
advantage," § 3.103(c)(2), and that the veteran is not told when the [RO] makes an
award that meets the criteria of this new C & P procedure. The [EAP] instructs the
[RO]: "Do not offer these [large award] rating decisions to any veteran's
representative for review until the C & P Service makes a final determination
regarding the propriety of the decision."
The new procedure does not provide the "in person" interaction provided by §
3.103(c)(2), and no opportunity to respond to the concerns of the deciding official,
whose decisional authority is removed from the [RO]. See Fast Letter 07-19, at 2 ("If
the C & P determines the decision is improper, it will provide specific corrective
action."); Fast Letter 08-24, at 3 ("C & P instructions are considered part of the
pre-decisional process and are not to be included in the permanent record . . . .
[R]epresentatives will be permitted the opportunity to review the draft rating
decision, but only after the file is returned from C & P Service and corrections, if
necessary, are made to it."). The C & P Service's determination is then issued in the
name of the [RO], and the veteran has no way of knowing what persuaded an
unidentified decision-maker to reduce the award that was made by the persons before
whom the hearing was held.
Purple Heart, 580 F.3d at 1297. The Federal Circuit, accordingly, held the EAP invalid. Id. at
1297-98.
3. The Retroactive Effect of 38 C.F.R. § 3.103(c)(1) (2011)
Since Purple Heart and MacKlem were decided, § 3.103(c)(1) was amended. Effective
August 23, 2011, § 3.103(c)(1) no longer guaranteed a hearing before "one or more employees who
have original determinative authority" over the issues to be decided at the hearing. Instead, claimants
were only entitled to a hearing before "one or more employees of the VA office having original
jurisdiction over the claim to conduct the hearing and to be responsible for establishment and
preservation of the hearing record." Compare 38 C.F.R. § 3.103(c)(1) (2011), with 38 C.F.R.
§ 3.103(c)(1) (2010).17 The regulatory provision was amended while the appellant's claim was
17
VA claimed that "[t]his language [was] consistent with other portions of §
3.103(c)(1)." Rules Governing Hearings Before the Agency of Original Jurisdiction, 76 Fed.
Reg. 52,572-01, 52,573 (Aug. 23, 2011) (to be codified at 38 C.F.R. pts. 3, 20). VA undertook
this amendment as part of a host of amendments to "reflect VA's intent" to "clearly distinguish
hearings before [agencies of original jurisdiction] from hearings before the Board, including the
duties of the respective VA personnel conducting the hearing." Id.21
pending before this Court. See Rules Governing Hearings Before the Agency of Original
Jurisdiction, 76 Fed. Reg. at 52,572-73.
At oral argument, the Secretary conceded that the amendment did not alter the RO's
responsibilities with respect to the conduct of hearings. Given this concession, the Court need not
inquire into whether VA's amendment "would impair rights a party possessed when he acted," thus
having "an impermissible retroactive effect."18 Ervin v. Shinseki, 24 Vet.App. 318, 322 (2011)
(citing Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994)).
4. The Purple Heart Doctrine Applied to this Case
The Board found that the January 2005 RO decision was not produced pursuant to an EAP-
like procedure. Ivan Sellers, BVA 08-1758, at 11. The Board explained that the RO did not abdicate
decisionmaking authority to an outside decisionmaker and that the appellant's claim was adjudicated
by RO personnel. Id. As such, the Board reasoned that the appellant was not denied "in[-] person
interaction with the deciding officials, as required by 38 C.F.R. § 3.103(c)(2)." Id. At oral
argument, the Secretary echoed the Board's position.
However, both the Board and the Secretary neglect key facts that demonstrate that the
appellant's rights to participate and respond were violated here. As in MacKlem, 24 Vet.App. at 66,
71, the appellant was advised of a decision on his claim authorized by RO officials, but, unlike
MacKlem, this case involves an RO that surreptitiously commenced review and revision of that
decision despite the fact that it had issued final and binding decisional notice to the appellant and
his representative pursuant to section 5104(a) and § 3.103(b)(1), (f). Cf. id. at 67, 71 (referring to
decision as a "proposal"); see also R. at 320-21.
Furthermore, between June 2004 and December 2004, the appellant attempted at least seven
times to learn of the status of his decision – including sending a letter to the Chief of the RO – but
18
Effective June 18, 2012, VA's August 23, 2011, revision to § 3.103(c)(1) is rescinded.
VA took this action because the prior amendment failed to adhere to notice-and-comment
procedures required by the Administrative Procedure Act (APA). See Rules Governing Hearings
Before the Agency of Original Jurisdiction and the Board of Veterans' Appeals; Repeal of Prior
Rule Change, 77 Fed. Reg. 23,128-01 (Apr. 18, 2012) (codified at 38 C.F.R. pt. 3, 20).
22
was given neither an adequate explanation, nor an audience by a final decisionmaker. R. at 320-21,
386. Even more peculiarly, after the appellant formally requested a hearing in June 2006, DRO
Marian Peters confessed that (1) the hearing would not be held by persons with final decisionmaking
authority; (2) even though she did not initially approve the June 2004 RO decision (R. at 293), she
worked to prevent revision of it; and (3) an unidentified entity known as "the front office" exercised
final decisional authority and secured revision of the June 2004 RO decision without the appellant's
knowledge or participation. R. at 82-83, 154.
Contrary to the Board and the Secretary's position, the fact that the revision of the June 2004
RO decision never left the RO is of no moment. The Federal Circuit in Purple Heart noted that the
EAP removed decisional authority from the RO, but central to the court's ruling was the undisputed
fact that the EAP prevented "a hearing in the presence of the persons who . . . have final decisional
authority for [RO] decisions," refused an "opportunity to respond to the concerns of the deciding
official," and resulted in a diminution of benefits that would have otherwise been conferred upon the
veteran. 580 F.3d at 1297. That final decisional authority was removed from the RO was merely
incidental to the dictates of the EAP, and its relevance to this matter is limited in light of the fact that
the RO bound itself to the dictates of the June 2004 RO decision pursuant to § 3.104(a).19
The Court cannot tolerate a similarly opaque, obfuscatory revision process in this case merely
because VA saw fit to confine its conduct to the agency of original jurisdiction. Indeed, the right to
a hearing before persons with "original determinative authority" guaranteed in § 3.103(c)(1), a right
on which the Federal Circuit in Purple Heart explicitly relied, 580 F.3d at 1296, is not limited to
cases in which the decisionmaker operates outside the RO. To read § 3.103(c)(1) as the Board and
Secretary insist would invite subversion.
As the Court in MacKlem observed, 24 Vet.App. at 72, VA is encouraged to implement
efficiency and efficacy measures in the adjudication process, such as supervisory review of front-line
adjudicators. The Court's holding today is no impediment to such innovations. Indeed, the record
19
The EAP was challenged pursuant to 38 U.S.C. § 502, which provides for direct
review of actions of the Secretary. Purple Heart, 580 F.3d at 1294 n.1 ("An action of the
Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers is subject to judicial review.
Such review shall be in accordance with chapter 7 of title 5 and may be sought only in the United
States Court of Appeals for the Federal Circuit.").
23
demonstrates that the June 2004 RO decision was authorized by rating specialist "Durkin," DRO
"Spurlock," and, consistent with the review procedures for rating decisions granting entitlement to
large retroactive awards, a designee of the Chief of the RO. R. at 293; see also M21-1, pt. VI, ch.
3, para. 3.07. If further review was required, the RO was empowered to undertake such review
pursuant to § 3.105(a), but it was not permitted to introduce "a secret adjudication [in]to a non-
adversarial system." MacKlem, 24 Vet.App. at 72.
This case presents a disturbing encroachment upon the appellant's rights to participate and
respond codified at 38 C.F.R. § 3.103(c)(1) and vindicated in Purple Heart. Accordingly, consistent
with MacKlem, 24 Vet.App. at 71-72, the January 2005 RO decision is void ab initio and the April
2008 Board decision relying on the January 2005 RO decision must be set aside as "not in
accordance with law." Id. (citing Brown v. Brown, 5 Vet.App. 413, 422 (1993)); cf. Schafrath v.
Derwinski, 1 Vet.App. 589, 595-96 (1991) (An "ultra vires action of [the Board] Chairman 'must
be treated as though it had never been taken.'" (emphasis in original) (citing In Re Fee Agreement
of Smith, 1 Vet.App. 492, 496 (1991) (per curiam))). On remand, the appellant must therefore be
placed in receipt of the favorable and effective June 2004 RO decision. See MacKlem, 24 Vet.App.
at 71 ("[T]he proper remedy is to place the appellant in the position he was in before the EAP, in
receipt of a favorable decision, even if that position is erroneous."). The Board must proceed
expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious
treatment" of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and a review of the
record, the Court holds that (1) the June 2004 RO decision is binding upon VA; and (2) the April
2, 2008, Board decision is set aside. The Court also reverses the findings of the Board's June 29,
2011, supplemental decision relating to the draft status of the June 2004 RO decision and whether
that decision was accompanied by a notice of appellate rights. Accordingly, the Board's April 2,
2008, decision is SET ASIDE and the Board's June 29, 2011, supplemental decision is REVERSED
IN PART and AFFIRMED IN PART, and the matter is REMANDED for action consistent with this
opinion.
24
KASOLD, Chief Judge, concurring in the result: I agree with my colleagues that Mr. Sellers
is entitled to an effective date for benefits for his RP disease earlier than February 5, 2004, albeit for
different reasons.
Specifically, I cannot agree with the majority's holding that the Board clearly erred in its
supplemental 2011 finding20 that the June 2004 RO decision was not binding because it was not
issued to Mr. Sellers in the normal course of business. The majority hold that, because Mr. Sellers
and his representative actually received the June 2004 RO decision and a notification letter, that
decision was binding regardless of how he received it. But, the "notification letter" cited by the
majority is not addressed to Mr. Sellers, is undated, purportedly awards Mr. Sellers financial
assistance in purchasing an automobile, and does not mention an award of benefits based on CUE.
Moreover, the claims file only contains the copy sent by Mr. Sellers. There is no indication that this
notification was ever issued by the Secretary or that it related to the June 2004 RO decision denying
CUE.
Succinctly stated, the Board's finding that the June 2004 RO decision was not final because
it was not issued in the normal course of business is plausible based on the record of proceedings and
I do not have a "firm conviction" that the Board erred in that finding. See 38 U.S.C. § 7261(a)(4);
Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is "clearly erroneous" when . . . the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.'" (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))).
I also disagree with the majority's views that only actual receipt – no matter how transmitted
or obtained – matters in determining whether a decision has been issued and is binding. Not only
does this view open a pandora's box of mistakenly released or fraudulently acquired drafts, especially
under the Secretary's current provision that representatives may review decisions before their release,
see M21-1, pt. VI, ch. 2, para. 2.05, but the cases cited in support of the majority's view are
inapposite. More specifically, Ashley and Clark found defects in transmission irrelevant to veterans'
assertions that their Notices of Appeal were untimely; they do not find that a decision never
transmitted in the normal course of business is binding. See Ashley v. Derwinski, 2 Vet.App. 62, 65
20
The Board's 2011 supplemental decision was rendered at the request of the Court and
focuses on the processing of Mr. Sellers's request for revision.
25
(1992) (claimant arguing that "the 120-day filing period . . . did not begin to run . . . , because the
B[oard] failed to meet its statutory obligation to mail a copy of the decision to her representative");
see also Clark v. Principi, 15 Vet.App. 61, 63 (2001) (claimant arguing that his Notice of Appeal
was timely because the Board decision was sent to the wrong address).
Accordingly, I would affirm the 2011 supplemental finding of the Board that the 2004 RO
decision was not issued in the normal course of business and therefore is not binding on the
Secretary.
On the other hand, because the facts found by the Board do not support its 2008 decision that
the 1988 RO decision did not contain CUE, I would reverse the 2008 Board decision. Specifically,
the Board found that Mr. Sellers entered service with no indication that he had RP. Although Mr.
Sellers's separation examination also did not reflect that he had RP, the Board noted that he was
referred for an optometry consultation examination because of complaints of decreased vision. As
the Board found, that in-service eye examination report reflects that (1) Mr. Sellers complained of
flashing lights and constricted field of vision, (2) Mr. Sellers had retinal pigment epithelial (RPE)
defects, and (3) no pathology was found.21 The 2008 Board also noted that a 1982 medical report
diagnosed Mr. Sellers with RP and explained that RP is characterized by, inter alia, peripheral visual
loss and changes in the back wall of the eye. Despite recognizing this record evidence, the Board
inexplicably and summarily concluded that the evidence at the time of the 1988 RO decision
reflected no competent evidence that RP manifested during service.
The Board further found no evidence of a specific, in-service diagnosis of RP, but it failed
to recognize that there is no requirement that a veteran be diagnosed in service for a disease to be
service connected. Indeed, the Board's focus on the timing of the diagnosis – rather than the
manifestation of the symptoms – contravenes precedent. See DeLisio v. Shinseki, 25 Vet.App. 45,
56 (2011) ("[E]ntitlement to benefits for a disability or disease does not arise with a medical
diagnosis of the condition, but with the manifestation of the condition . . . .").
21
As the majority note, RPE defects are defects of "a layer of pigmented epithelium that is
the outer of the two parts of the optic part of the retina . . . extending from the entrance of the optic
nerve to the pupillary margin of the iris," and RP is "a group of diseases, frequently hereditary,
marked by progressive loss of retinal response . . . , retinal atrophy, attenuation of the retinal vessels,
and clumping of the pigment, with contraction of the field of vision." DORLAND'S at 1781, 1634.
26
Moreover, the record reflects that the 1988 RO did not deny benefits because Mr. Sellers did
not have RP. Rather, the RO denied benefits because Mr. Sellers's RP was considered a
constitutional or developmental abnormality (CDA) that was inherited and not aggravated in service.
See R. at 452 (1988 RO decision stating: "Vet's [RP] is a CDA, not aggravated in service."). This
view – that Mr. Sellers's RP was a CDA – was consistent with the Secretary's view at the time that
RP was presumed to be hereditary if there was no evidence otherwise. See R. at 107 (VA Office of
General Counsel Opinion 1-85 (Mar. 5, 1985) (reissued as VA Gen. Coun. Prec. 82-90 (July 18,
1990)), stating that "VA adjudicators ordinarily are justified in finding that [a congenital,
developmental or familial in origin] disease, by its very nature, preexisted the claimant's military
service"), 122 (VA Gen. Coun. Prec. 11-1999 (Sept. 2, 1999), noting that the M21-1, ch. 50, para.
50.09(d) (Jan. 3, 1986), instructed that "[i]f no other cause is shown for [RP], consider it to be
hereditary, and determine service connection on whether or not there has been aggravation of this
preexisting condition during service."); cf. 38 U.S.C. § 7104(c) (Board is bound by General Counsel
opinions).
However, although the Secretary's presumption that RP is hereditary might be appropriate
for many purposes, it cannot be used to defeat the congressionally mandated presumption of
soundness. See 38 U.S.C. § 1111. Otherwise stated, because Mr. Sellers entered service without
any notation that he had RP, his in-service manifestation of RP is presumed service connected unless
it is shown by clear and unmistakable evidence that RP existed prior to service and was not
aggravated by service. Id. Here, the Board found no evidence, and the record of proceedings reflects
no clear and unmistakable evidence, that RP manifested prior to service, and the only medical
evidence before the 1988 RO on whether Mr. Sellers had a family history of RP found "no specific
evidence of similar problems in other members of your family." R. at 500 (1982 medical report).
In sum, Mr. Sellers would have been awarded service connection in 1988 but for the RO's
presumption that RP was hereditary. Accordingly, I find the Board's 2008 determination that the
1988 RO decision did not contain CUE to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, and I would reverse it – which is the basis for my concurring
in the result of the majority's decision. See Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005) (Board
decisions on CUE motions are reviewed under the "arbitrary, capricious, an abuse of discretion, or
27
otherwise not in accordance with law" standard); Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993)
(demonstrating CUE requires showing that the outcome would have been manifestly different but
for the error); see also Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) ("[R]eversal is the appropriate
remedy when the only permissible view of the evidence is contrary to the Board's decision.").22
22
One differentiating effect of a Board reversal and remand based on CUE in the 1988
RO decision as opposed to a Board reversal and reinstatement of the 2004 RO decision is that
reversal by the Court predicated on CUE in an earlier decision does not permit further revision of
that earlier decision by the Secretary. Compare Winsett v. Principi, 341 F.3d 1329, 1331
(Fed.Cir.2003) (holding that CUE may not be brought after an underlying issue has been
adjudicated by a court and noting that permitting such action "would allow a lower tribunal to
review the decision of a higher tribunal") with 38 C.F.R. §§ 3.104(a), 3.105(a) (permitting
revision of final RO decisions based on CUE).
28