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APPELLANT'SBRIEF
No. 2007-7152WEST/CRS
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
CLAIMANT-APPELLANT'S BRIEF
Re
MICHAEL R. BAXENDALE,
Claimant-Appellant,
u_rJ'Mx
R. JAMES NICHOLSON,
Secretary of Veterans Affaks,
Respondent-Appellee.
U.S. COURTOF APPEALSFORTHE FE!)ERALCIRCUIT
APR _ 0 2O07
_AIIHORBALY
_APPEAL FROM THE
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
IN 04.-2492, JUDGE MARY J. SCHOELEN.
KENNETH M. CARPENTER
Carpenter, Chartered
1525 Southwest Topeka BoulevardPost Office Box 2099
Topeka, Kansas 66601785-357-5251
Attorney for Claimant-Appellant
No. 2007-7152
I_ the
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
CLMMANT-APPE_S BRIEF
Re
MICHAEL R. BAXENDALE,
Claimant-Appellant,
vera_s
R. JAMES NICHOLSON,
Secretary of Veterans Affairs,
Respondent-Appellee.
APPEAL FROM THE
UNITED STATESCOURT OFAPPEALSFOR VETERANSCLAIMS
IN 04-2492, JUDGE MARY J. SCHOELEN.
KENNETH M. CARPENTER
Carpenter, Chartered
1525 Southwest Topeka BoulevardPost Office Box 2099
Topeka, Kansas 66601
785-357-5251
Attorney for Claimant-Appellant
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
Baxendale v. DVA, 2007-7152
Certificate of Interest
Counsel for the Claimant-Appellant certifies the following:
1. The full name of every party or amicus represented by me is:
Michael Robert Baxendale.
2. The name of the real party in interest is:
Michael Robert Baxendale.
3. All parent corporations and any publicly hdd companies that own 10 percent
or more of the stock of the party or amirus cudae represented by me are:
None.
4. There is no such corporation as listed in paragraph 3.
5. The names of all law firms and the partners or associates that appeared for the
party or amieus now represented by me below or are expected to appear in this Court
are:
Kenneth M. Carpenter, Esq., Carpenter, Chartered.
April 30, 2007
TABLE OF CONTENTS
Page
Certificate of Interest ................................................... i
Table of Contents .................................................. ii-ifi
Table of Authorities ................................................. iv-vi
Statement of Related Cases ............................................ vii
Introduction ......................................................... 1
Statement of Subject-Matter and Appellate Jurisdiction ....................... 2
Statement of the Issue ................................................. 2
Statement of the Case ................................................. 2
Statement of the Facts ................................................. 3
Summary of the Arguments ............................................. 4
Arguments .......................................................... 5
I. Standard of Review ........................................ 5
II. The Veterans Court misinterpreted 38 C.F.R. _ 3.103(a) ............ 5
A. The VA's unique responsibilities to the claimant ............. 6
1. The Board bears the same re_oncibik'_ .................. 6
2. Decisions of coum confirm it .......................... 7
3. Legislative re_onses confirm it ........................ 9
4. The communiO of veterans rek'es on it ................... 10
5. The VA knows it doesn't work ...................... 11
B. The Veterans Court overlooked the additional duty
self-imposed by the VA under 38 C.F.I_ _ 3.103(a) .......... 15
C. The plain language of 38 U.S.C. _ 5110(b)(2) ............... 16
ii
Page
D. Why this misinterpretation is prejudicial .................. 19
Conclusion ......................................................... 20
Certificate of Compliance ............................................. 21
Certificate of Service ................................................. 22
iii
TABLE OF AUTHORITIES
Page
CASES
Andre v. Ptindpi, 301 F.3d 1354 (Fed. Cir. 2002) ............................. 5
Brown v. Gardner, 513 U.S. 115 (1994) .................................. 7, 11
Col�am v. West, 136 F.3d 1304 (Fed. Cir. 1998) .............................. 8
Dalton v. Nicbalsoa, 21 Vet.App. 23 (2007) ............................... 17-18
Elkins v. Gaber, 229 F.3d 1369 (Fed. Cir. 2000) .............................. 7
Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000) .............................. 7
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) ............................. 7, 8
Johnson v. Bro_vn, 7 Vet.App. 95 (1994) .................................... 19
Morton v. West, 12 Vet.App. 477 (1999) ............ ;. ................... 9, 10
Nokn v. Gober, 222 F.3d 1356 (Fed. Cir. 2000) .............................. 7
F_alters v. NalionalAssoda#on ofRaa_ation Sur_vors, 473 U.S. 305 (1985) ........... 7
I_inters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000) ............................. 7
Statutes
338 U.S.C. _ 5103 ..................................................... 9
38 U.S.C. _ 5103A(a) ................................................ 5, 9
38 U.S.C. _ 5103A(d) .................................................. 5
38 U.S.C. _ 5103A(d)(1) ......................................... 15, 16, 20
38 U.S.C. _ 5103A(d)(2) ............................................ 15, 16
iv
Page
° • • ° • • • • • • • • * • • • ° * ° ° ° ° . ° ° ° • ° • • .......... . ° . ° . . o . ° ° . 5
• • • * • ° • • • ° ° • ° • • • • ° ° • ° • * * * . * • ° ° • ° • • • ° ° ° • ° • • • • • ° . . , . . 1
38 U.S.C. _ 5110(b)(2) ............................................ 1, 16-18
38 U.S.C. _ 7104(a) .................................................. 16
38 U.S.C. _ 7252(a) ................................................... 2
Regulations
37 Fed. Reg. 14780 (July 25, 1972) ....................................... 6
38 C.F.I_ _ 3.103(a) ..................................... 1, 2, 4-6, 15-17, 19
38 C.F.R. _ 3.400(0)(2) ........................................... 1, 16, 17
Other
146 CONG. REC. H9914 (October 17, 2000) ............................... 10
Annual Report of the Chairman, Board of Veterans' Appeals,for Fiscal Years 1992-2001 .............................................. 7
FI. R. REP. NO. 100-963, pt. 1, p. 10 (1988) ................................ 11
Melidosian Report, Veterans' Claims Adjudication Commission, 1996 .......... 14
"Proposals to Improve Disability Claims Processing in the Veterans
Benefits Administration," by the Blue Ribbon Panel on Claims
Processing, dated November 1993 .................................... 11-13
Richard E. Levy, Of Two Minds: Charitabk and Sodal Insurance Models
in the Veterans Benefits System, 13 KAN. J. L. & PUB. POL. 303 n. 118
at 333 (Spring 2004) ................................................. 6, 9
The Independent Budget for the DVA for Fiscal Year 2006,p. 25, prepared by Amvets, DAV, PVA and VFW .......................... 11
V
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (VCAA) .....................................
Page
9, 10, 14
Veterans Regulation No. 2(a), as promulgated by Executive Order
6230 (July 28, 1933) ................................................... 7
WILLIAM F. FOX, JR., THE LAW OF VETERANS BENEFITS: JUDICIAL
INTERPRETATION 83-92 (2002) .......................................... 9
vi
Statements
INTRODUCTION
This is a veterans benefits case involving the effective date for an award of an
increased rating (and therefore increased compensation) for a disability. When a veteran
has been awarded compensation, and the disability becomes more severe later, the
veteran may apply for an increase in the rating of the disability. See 38 U.S.C. _ 5110(a)
(referring to a "claim for increase"). If granted, the increased rating leads directly to a
corresponding increase in compensation. In such a situation the effective date of the
increased rating governs the back benefits to be paid to the veteran. Though the
effective date of an award is usually the date of the claim, ia[, there is a special rule that
allows the effective date to be up to one year earlier if it is ascertainable that there was
an increase in that year, 38 U.S.C. _ 5110(b)(2 ) and 38 C.F.R. _ 3.400(0)(2). Mr.
Baxendale sought the benefit of that rule, but he needed the VA's help: He needed to
have the VA conduct a medical examination to answer the "ascertainable" and "increase"
questions. The VA's statement of policy found in 38 C.F.tL _ 3.103(a) requires the VA
to assist every claimant by developing facts pertinent to a claim. The facts requiring
development when a claim for increase has been granted include specific inquiry of the
veteran concemingwhether his or her disability had increased in the one year prior to the
date of the claim, and if necessary a retrospective medical opinion to confirm that such
an increase was ascertainable.
-1-
Stntements
STATEMENT OF SUBJECT-MATTER AND APPELLATE JURISDICTION
On October 29, 2004, the Board of Veterans' Appeals denied Mr. Baxendale an
effective date earlier than August 17, 1992, for the award of increased compensation for
his psychiatric disability. Mr. Baxendale timely appealed to the Veterans Court, which
had jurisdiction pursuant to 38 U.S.C. _ 7252(a). On December 13, 2006, the Veterans
Court affirmed. Mr. Baxendale's timely appeal to this Court followed on February 20,
2007. This Court has jurisdiction pursuant to 38 U.S.C. _ 7252(a). The order from which
the appeal is taken is a final order.
Statement of the Issue
Whether the Veterans Court correctly interpreted 38 C.F.R_ _ 3.103(a)?
Statement of the Case
This appeal arises from the failure of the Board of Veterans' Appeals to require
the VA to develop facts pertinent to whether Mr. Baxendale's disability increased in the
one year prior to August 17, 1992. Mr. Baxendale asked the Veterans Court to compel
the Board to require the VA to assist Mr. Baxendale, but the Veterans Court relied on a
misinterpretation of 38 C.F.R. _ 3.103(a) and affirmed the Board's decision on October
29, 2004, and this appeal followed.
-2-
Statements
Statement of the Facts
Mr. Baxendale's active military service was in the Marine Corps and included a tour
of duty in Viet Nam. JA 118.1 Mr. Baxendale was granted disability compensation for
the disability resulting from post traumatic stress disorder at an initial rating of 10%
effective from August 16, 1989. On June 12, 1991, Mr. Baxendale sought an increased
rating. On August 21, 1991, the VA increased the rating to 50% effective from June 17,
1991. JA 116-117. On May 8, 1992, Mr. Baxendale filed an informal daim for increased
compensation, JA 114-115, and then he filed a formal claim for increased compensation
on December 30, 1992, JA 112-113.
On December 5, 1995, the VA granted a 100% rating effective from January 4,
1993, the date of receipt by the VA of Mr. Baxendale's December 30, 1992, claim for an
increased rating. JA 108-111. Mr. Baxendale appealed the effective date of January 4,
1993. JA 104-07. On October 8, 1998, the Board granted an effective date of August 17,
1992, the date of the Board determined Mr. Baxendale's disability had increased, based
on a January 1993 claim received by the VA for increased rating. JA 99-103. Mr.
Baxendale appealed the Board's decision to the Veterans Court. It vacated the Board's
decision and returned the matter to the Board for re-adjudication. JA 93-98.
1 References to the Joint Appendix to be filed by the parties following the reply
brief will be cited as '_A m."
-3-
Arguments
In 2002, the Board denied Mr. Baxendale's claim for an earlier effective date for
the second time. JA 82-92. Mr. Baxendale appealed. On appeal, the VA entered into
a joint motion for remand with Mr. Baxendale. JA 78-81. The Veterans Court granted
the motion and remanded- JA 77. In 2004, the Board remanded the matter to the VA.
JA 73-76. The VA submitted a supplemental statement of the case which continued its
denial of an earlier effective date. JA 65-72. On October 29, 2004, the Board denied Mr.
Baxendale's claim for an earlier effective date for the third time, JA 51-64, and Mr.
Baxendale appealed to the Veterans Court. The Veterans Court affirmed the Board's
decision on December 13, 2006. JA 1-9. Mr. Baxendale appealed to this Court.
Summary of the Arguments
The Veterans Court relied on an interpretation of 38 C.F.1L _ 3.103(a) that excuses
the VA from its duty to assist a claimant by obtaining a medical opinion. The Veterans
Court mistakenly rejected Mr. Baxendale's allegation of a specific defect in the VA's duty
to assist, the Board's refusal to order a "retrospective" medical opinion to determine the
date on which Mr. Baxendale's post traumatic stress disorder disability had worsened.
JA 4-5. But for this misinterpretation, Mr. Baxendale's claim would have been remanded
to the Board with instructions to obtain a medical opinion and develop facts pertinent
to whether Mr. Baxendale's disability increased in the one year prior to the date of his
claim for increased compensation. Accordingly, this Court should reverse the Veterans
-4-
Arguments
Court's decision and remand with instructions to the Veterans Court to vacate the
Board's decision and remand with instructions to the Board to obtain a medical opinion
and develop facts pertinent to whether Mr. Baxendale's disability increased in the one
year prior to the date of his claim for increased compensation.
Arguments
I.
Standard of Review
The Court reviews the Veterans Court's legal conclusions without deference.
AiMre v. Ptincipi, 301 F.3d 1354, 1358 (Fed. Cir. 2002).
II.
The Veterans Court misinterpreted 38 C.F.R. S 3.103(a).
The Veterans Court misinterpreted the VA's duty to assist under 38 C.F.R.
3.103(a) in a claim for increased compensation concerning the effective date to be
assigned. It concluded that _ 5103A(a) is limited to existing records and that medical
examinations under g 5103(c 0 are not available to claimants who seek an increased rating.
JA 4-5. That statutory interpretation is correct 2 and not challenged by this appeal.
However, every veteran is entitled to the VA's assistance in developing facts pertinent to
2 Mr. Baxendale acknowledges that in his btief below he relied on 38 U.S.C.
5103A(d) but also relied on the provisions of 38 C.F.R. _ 3.103(a) to support his duty
to assist argument.
-5-
Arguments
a claim. The narrow interpretation of the VA's duty to assist by consideration of the
statute is inconsistent with the VA's statement of policy in 38 C.F.R. _ 3.103(a) and
improperly limits the VA's obligations to claimants.
A. The VA's unique responsibilities to the claimant.
One of the most fundamental and distinctive principles in veterans benefits law
is that the VA is obliged to help the veterans. That idea reaches back at least as far as
1972, when the original version of 38 C.F.IL _ 3.103(a) was promulgated. 37 Fed. Reg.
14780 (July 25, 1972). 3 That regulation now provides (in pertinent part):
Proceedings before VA are exparte in nature, and it is the obligation of'VA
to assist a claimant in developing the facts pertinent to the daim and to
render a decision which grants every benefit that can be supported in lawwhile protecting the interests of the Government.
The quoted portion is essentially the same as its 1972 ancestor.
/. The Board bears the same re_omibib'_.
It may have even earlier roots. An ancestor of that requirement is reported in the
annual reports of the Board of Veterans' Appeals. Each of its annual reports to the
Secretary and to Congress for its fiscal years 1992 through 2001, inclusive, included some
version of the following statement: "The Board was charged 'to provide every possible
3 See also Richard E. Levy, Of TuJoMinds: Cbatitabk and Sociallnsumnce Models in the
VetemnsBen_tsSgstem , 13 KAN.J.L. &PUB. POL 303 n.118 & 119 at 333 (Spring2004).
-6-
Arguments
assistance' to claimants and to take final action which would 'be fair to the veteran as well
as the Government.'" Annual Report of the Chairman, Board of Vetems' Appeals, for
Fiscal Year 1992 at p. 3; Annual Report... for... 1993 at p. 1;... 1994 at p. 1;...
1995 at p. 1;... 1996 at p. 1;... 1997 at p. 1;... 1998 at p. 2;... 1999 at p. 2;... 2000
at p. 2;... 2001 at p. 2. 4 At each of the cited reports the Chairman attributed the quoted
passage to a 1933 regulation, Veterans Regulation No. 2(a), as promulgated by Executive
Order 6230 (July 28, 1933), which coincides with the establishment of the Board.
2. Deduons of courts confirm iL
Presumably the idea predates the Board. Dozens, perhaps scores of decisions
allude to the uniqueness of and paternalism required in the VA's relationship with its
clientele. See, e.g., Brown v. Gardner, 513 U.S. 115 (1994) (interpretative doubts resolved
in favor of the veteran); IValters v. NationalAssodation of Radiation Survivors, 473 U.S. 305,
323-24 (1985) ("[S]urely Congress intended that the proceedings would be as informal
and nonadversarial as possible." "Rational paternalism"); Elkins v. Gober, 229 F.3d 1369,
1376 (Fed. Cir. 2000) ("pro-claimant, nonadversatial exiOarte system"); Nokn v. Gober, 222
F.3d 1356, 1361 (Fed. Cir. 2000); It/inters v. Gober, 219 F.3d 1375, 1379 (Fed. Cir. 2000);
Hensky v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000) ("uniquely pro-claimant nature of
the veterans compensation system"); Hodge v. I_est, 155 F.3d 1356, 1362-64 (Fed. Cir.
4 The annual reports are available at <http://www.va.gov/VBS/bva/index.htm>.
-7-
Arguments
1998) ('hniquely pro-claimant," "Fully and sympathetically develop the veteran's claim
to its optimum before decision on its merits."); Collaro v. West, 136 F.3d 1304, 1309-10
(Fed. Cir. 1998) ("Nonadversarial, exparte, paternalistic system"). One of the most
concise abbreviations of this sentiment appeared in Hodge, 155 F.3d at 1356:
If a claimant desires advice or other help, [the DVA] provides specially-
trained personnel to answer inquiries and assist in the submission of the
claim. [The DVA's] medical facilities often serve as an important referral
source, and the major veterans service organizations also furnish daims
assistance by trained specialists at no charge. Congress has dedgned andful#
intends to maintain a benefidal non-adversarial _stem of veterans benefits. This is
particularly true of service-connected disability compensation where the
element of cause and effect has been totally by-passed in favor of a simple
temporal relationship between the incurrence of the disability and the
period of active duty.
Imp_dt in such a benefidal _ystem has been an evolution of a compkte_ exparte ostem
of adjudkation in which Congress expects [the D VA] to fully and £Vtt_athe_'cal_
develop the veteran's claim to its optimum before deriding it on the merits. Even then,
[the D VA] is expected to resolve all issue by giving the claimant the benefit of anyreasonabk doubt. In such a beneficial structure there is no room for such
advetsarial concepts as cross examination, best evidence rule, hearsay
evidence exclusion, or strict adherence to burden ofproo£ H.R. REP. NO.
10-963, at 13 (1988), t_rintedin 1988 U.S.C.C.A.N. 5782, 5794-95 (emphasis
added).
Hodge at 1362-63. This passage demonstrates that, even in creating judicial review in the
veterans context, Congress intended to preserve the historic, pro-claimant system.
-8-
Ar_araents
The VA's duty to assist the claimant is in the center of its mission, but it has
sometimes been endangered, and when that has happened, Congress has brought things
back on course.
3. LeAislative re_onses confirmit.
The Veterans Court previously concluded that a claimant was entitled to no help
from the VA until the claim was shown to be '`well grounded." Morton v. West, 12 Vet.
App. 477 (1999). The decision in Morton concluded, "[A]bsent the submission and
establishment of a well-grounded claim, the Secretary cannot undertake to assist a veteran
in developing facts pertinent to his or her claim." Id at 486. Congress replied to Morton
by enacting the Veterans Claims Assistance Act (VCAA), removing the "well grounded"
requirement entirely and codifying at 38 U.S.C. _ 5103 and 5103A the VA's duties to
help the claimant understand what evidence he needs, help him get it, and help him by
creating evidence (medical opinions and examinations) when necessary, s
s Seegeneralt3 WILLIAM F. FOX, JR., THE LAW OF VETEm_NS BENEFITS: JUDICIAL
INTERPRETATION, 83-92 (2002). Although the VCAA is sometimes characterized as
new, we think Professor Levy is more correct:. "The Act also specifies in much
greater detail the obligations imposed by the duty to assist." Richard E. Levy, Of Two
Minds: Chatitabk and Sodal Insurance Modeh in the Veterans Benefits System, 13 KAN. J. L.
& PUB. POL. 303, 317 (Spring 2004). Professor Fox agrees: "Congress understood
that the Department was already functioning in this fashion but believed that
'codification of this requirement [evidence to substantiate, "who/which"] should
result in a more uniform practice of notifying a clamant of what evidence he or she
must provide .... " THE LAW OF VETERANS BENEFITS: JUDICIAL INTERPRETATION,(continued...)
-9-
Arguments
The legislative response to Morton is informative about the scope of the VA's role.
The explanatory statement that accompanied the VCAA to the floor of the House of
Representatives described the Congress's expectations of the VA:
The [VA's] system for deciding benefits claims "is unlike any other
adjudicative process. It is specifically designed to be claimant friendly. Itis non-adversarial: therefore, the VA must provide a substantial amount of
assistance to a veteran seeking benefits.
146 CONG. REC. H9914 (October 17, 2000) (quoting H. REP. NO. 105-52 (1997)).
4. The ¢ommuni{y of veterans relies on it.
Veterans rely on the VA's legendary obligations on their behalf, and on their
expectations that the VA will satisfy its duties to them. The major veterans service
organizations recently described their expectation of VA claims administration:
Historically, VA's regulations were drafted to reflect these benevolent goalsand the special treatment and considerations to be accorded veterans
seeking benefits. For example, a longstanding VA regulation begins with
this declaration: "It is the defined and consistently applied policy of the[VA] to administer the law under a broad interpretation." 38 C.F.R _ 3.102.In another regulation, the essence of VA policy is articulated with this
statement "Proceedings before VA are ex parte in nature, and it is theobligation of VA to assist a claimant in developing the facts pertinent to theclaim and to render a decision which grants every benefit that can be
supported in law while protecting the interests of the Government. 38C.F.R _ 3.103.
(...continued)
pp. 89 (2002) (quoting H.R. REP. NO. 106-781,106 _ Cong., 2d sess. (2000)).
-10-
Arguments
Regrettably, with its decisions immune to judicial review and VA operating
in what has been described as a state of "splendid isolation ''6 for most of
the 20 _ century, VA adjudicators often ignored the liberal provisions of VA
regulations.
The Independent Budget for the Department of Veterans Affairs for Fiscal Year 2006,
p. 25, prepared by AmVets, Disabled American Veterans, Paralyzed Veterans of
American, and Veterans of Foreign Wars of the United States.
5. The VA knows it doesn't work.
The VA has long known that VA practices and forms impair the opportunity of
claimants to participate in the process o festablishing their entitlement to the benefits that
they seeZ In June 1993, the Deputy Undersecretary for Benefits commissioned an
inquiry provoked by VA's backlog problem. The inquiry culminated in a 34-page report
entitled, "Proposals to Improve Disability Claims Processing in the Veterans Benefits
Administration," by the Blue Ribbon Pant on Claims Processingo dated November
1993. _ Its first finding was, "Development of initial and reopened disability
compensation claims is inadequate." Report at 3, see also 9. It reported, "Unnecessary
delays.., occur because written communications do not dearly advise clairnants of the
6 H. R. REP. NO. 100-963, pt. 1, p. 10 (1988), as quoted at Brou, n v. Gardner, 513
U.S. 115, 122 (1994).
The report may be found in the collections of "Documents and Reference
Materials" at the web site of the Veterans Disability Benefits Commission at
<http://www.vetscommission.org/>.
-11-
Arguments
information that is needed and the importance of receiving it timely. The Panel's
proposals include recommendations for development of a national standard letter
package that simply, directly, and compassionately communicates evidence needs and
instructions." Id at 7. It continued, 'The Panel also believes it essential to redesign and
simplify the application for disability benefits (VA Form 21-526) and the accompanying
instructions to make them user-friendly. VBA currently has no form or instruction sheet
to give to veterans who wish to reopen their claims or who seek reevaluation of their
disabilities. A new form is needed that would solicit from the veteran information
sufficient to develop the claim to the fullest extent possible as quickly as possible." Id.
at7.
The commission returned to the claim forms in more detail:
A veteran fling a first-time application for compensation or pension
benefits is required to submit that claim on VA Form 21-526. It is the
opinion of the Panel that this form has evolved into a disjointed
combination of entries to be completed by the claimant. Five pages of
instructions are provided which do not adequately communicate to the
veteran what information is crucial to a decision on his or her claim, nor do
they identify what additional evidence the veteran is responsible for
providing to assist VA in the completion of the claims process.
There is also no specific claim form to use to request to reopen a claim or
to request reevaluation of a service connected disability. Because the
veteran usually does not know what information is needed to process these
types of claims, a development letter to the veteran is almost always needed,
which can add weeks or even months to the process.
-12-
Id. at
Ar_ments
PROPOSED SOLUTION: Redesign VA Form 21-526 and the
instructions. The application for an original compensation or pension
claim needs to be redesigned with both the veteran and VA in mind. The
Panel was briefed on an effort already underway in VBA to accomplish thisredesign, which included use of focus groups and input from all VBA
organizational dements involved in processing claims.
PROPOSED SOLUTION: Devise a form to help customers identify issuesand evidence on reopened claims and on claims for reevaluation of serviceconnected disabilities.
The Panel believes that a separate form for reopened claims and claims for
an increased rating will facilitate rapid development and assist the veteran
in providing the information needed to promptly act on his or her claim.
13 (emphasis added).
But the forms are not the only problem: The commission found---
Input from various field dements and the Veterans Service Officers
indicated that VBA's letters are confusing because of the format and the
use of VA jargon and legal terms. Claimants cannot easily determine what
is required of them and tend to ignore the request, thus delaying their claimor causing it to be denied.
PROPOSED SOLUTION: Develop a standard computer-generated letter
package for nationwide use that requests information in clear, simple
language that is easily understood by the reader.
In developing a standard letter package, VBA must format the letters to listfirst the key information and evidence needed. Instructions should be
highlighted, VA jargon eliminated, and legal notices placed on the reverseof the letter or in attachments.
Ia_ at 14.
-13-
A_ments
Later Congress ordered an inquiry into the VA's system. PUB. L. NO. 103-446
established the Veterans' Claims Adjudication Commission, which submitted its report
in late 1996, often called the "Melidosian Report." It also reported, 'WA fails to advise
claimants: of the specific criteria for granting benefits; of the nature of the evidence
required to meet those criteria .... " Melidosian Report, p. 107, see also pp. 111
C'veterans do not know what evidence is necessary"), 121 ('Weterans need more
information about what evidence is required .... ,_.8
Obvious throughout these comments by the Blue Ribbon Panel and the
Melidosian report is that VA was already well aware over a decade ago that it needed to
convey to the claimant specific, useful information about what was needed to
substantiate the claim, just as Congress later required when it enacted the VCAA. The
VA's duty to assist the claimant is legendary, even if its fulfillment has been elusive. It
has thus far continued to elude both the VA and the Veterans Court, as the
interpretations in this case attest.
a The report may be found in the collections of'CDocuments and Reference
Materials" at the web site of the Veterans Disability Benefits Commission at
<http://www.vetscommission.org/>.
-14-
ArAumeuts
B. The Veterans Court overlooked the additional duty self-imposed
by the VA under 38 C.F.R. S 3.103(a).
In its consideration of the scope the VA's duty to assist the Veterans Court failed
to consider the VA's self-imposed duty to develop facts pertinent to the claim. See 38
C.F.tL ] 3.103(a). The VA's statement of policy provides, "[I]t is the obligation of VA
to assist a daimant in developing facts pertinent to the claim and to render a decision
which grants every benefit that can be supported in law .... " One of the ways in which
the VA could have "developed facts pertinent" to Mr. Baxendale's claim for an effective
date earlier than August 17, 1992, would have been to obtain a retrospective opinion
concerning whether Mr. Baxendale's disability increased in severity in the one year prior
to August 17, 1992. Such an opinion, had it been developed, could have made it
"factually ascertainable" that Mr. Baxendale's disability increased in that year. It would
have permitted the assignment of an effective date as early as Mr. Baxendale's disability
increased in that year. The VA's regulation is apparently inconsistent with 38 U.S.C.
5103A(d)(1) and (2) concerning obtaining a medical opinion necessary for the decision
to be made by the VA in compensation claims.
The interpretation made by the Veterans Court failed to take into account the
VA's self-imposed duty to develop facts pertinent to the claim under 38 C.F.IL _ 3.103(a).
This duty is consistent with the historical duty to assist claimants in this nonadversarial
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Ar_menfs
adjudicatory system. Regardless of whether _ 5103A(d)(1) and (2) are limited to obtaining
medical opinions in compensation claims, limiting the VA's self-imposed duty to develop
facts pertinent to a claim is an unreasonable and unwarranted interpretation of the :VA's
duty to assist. The VA's responsibilities to the claimant, which must necessarily be
satisfied prior to the VA decision, the narrow interpretation made by the Veterans Court
of the VA's duty to assist, in light of 38 C.F.1L _ 3.103(a), cannot stand.
C. The plain language of 38 U.S.C. _ 5110(b)(2).
An understanding of the plain language of 38 U.S.C. _ 5110('o)(2) is needed. Mr.
Baxendale argued in his brief below that the Board had failed to correctly apply 38 U.S.C.
5110(o)(2) and the VA's nearly identical regulation at 38 C.F.1L g 3.400(o)(2). SeeJA
28-32. Mr. Baxendale also argued that the Board violated 38 U.S.C. _ 7104(a) by failing
to consider and apply 38 U.S.C. _ 5103A(d)(1). SeeJA 32-34. As a result, itwas necessary
for the Veterans Court to rely on an interpretation of these statutes in consideration of
the arguments presented by Mr. Baxendale.
Mr. Baxendale specifically presented to the court below:
An earlier effective date can be assigned pursuant to 38U.S.C. _ S110(b)(2) and 38 C.F.R. _ 3.400(0)(2) in a claim
for an increase in the rating of a veteran's disability. Anearlier effective date may be assigned up to one year prior
to the date of the claim for increased rating if it was factually
ascertainable in the one year prior to the date of the claim
for increase that an ittcreasehad occurred. The plain
language of the statute requires, 'q'he effective date for an
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Arguments
award of increased compensation shall be the earliest date
as of which it is factually ascertainable that an increase in
disability had occurred.., within one year from such date."
Emphasis added. The Board did not did not require the
VA to develop the pertinent facts so that it could correctly
apply the requkements of statute and regulation.
JA 29-30.
Mr. Baxendale also argued, '_I]ae Board failed to correctly apply _ 5110(b)(2) and
3.400(o)(2) by implicitly requiring Mr. Baxendale to have submitted evidence that his
serx4ce-connected disability had increased in severity in the one year prior to the date of
the claim for increased compensation." JA 31. Mr. Baxendale further contended, "A
correct application of_ 5110Co)(2) and _ 3.400(o)(2), required the VA to "develop facts
pertinent" to whether Mr. Baxendale, in the one year prior to January 4,1993, was or was
not unable to work due to his service-connected post traumatic stress disorder." JA 32.
Based upon the plain meaning of_ 5110(b)(2) and _ 3.400(o)(2), the VA's duty to assist
under _ 3.103(a) must be implicated.
The Veterans Court's adoption of the Board's reading of the statute and regulation
impermissibly shifts the duty to develop evidence to the veteran. Recently, the Veterans
Court in Dalton v. Nicholson, 21 Vet.App. 23 (2007), held:
Accordingly, we hold that a claimant awarded TDIU based
on an already service-connected condition, which later
renders him unable to secure or follow a substantially gainful
occupation, is entitled to consideration of an effective date
pursuant to section 5110(b)(2). SeeNorris, 12 Vet.App. at
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A_ents
421-22 (evidence of unemployability due m a 70% disabilityrating reasonably raised TDIU claim); Green and l_ood
(Clarence), both s_m. Hence, the Board is required to
search the record to determine whether it is factually
ascertainable that in the one year prior to the applicationthere was an increase in disability. See Scott v. Brown, 7
Vet.App. 184, 189 (1994) (approving Board's consideration
of "all the evidence of record" for the year preceding the
claim to ascertain whether disability increased in severity).
Dalton, 21 Vet.App. 34. The significance of this holding is the recognition that a veteran
is entitled to consideration of an effective date pursuant to section 5110(b)(2) when as
here the veteran was awarded increased compensation based on an already
service-connected condition.
The Veterans Court should have reversed the Board's decision and remanded with
instructions directing the Board to require the VA to "develop facts pertinent" to
whether it was "factually ascertainable" that Mr. Baxendale's post traumatic stress
disorder increased in severity in the one year prior to August 17, 1992, as required by 38
U.S.C. _ 5110(b)(2). The relationship between the VA's duty to assist under its
regulation, 38 C.F.tL ] 3.103(a) is evident and required by the plain language of 38 U.S.C.
s110Co)(2).
Thus, the interpretation made by the Veterans Court was wrong and must be
reversed by this Court.
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Arguments
D. Why this misinterpretation is prejudicial.
This Board made two findings of fact which demonstrate the prejudice to Mr.
Baxendale from the misinterpretation of 38 C.F.IL _ 3.103(a) made by the Veterans
Court. First, the Board found:
The RO has obtained all relevant evidence necessary for anequitable disposition of the veteran's claim for an earlier
effective date for the award of a 100 percent evaluation for
post traumatic stress disorder.
JA 52. In addition, the Board found:
The evidence of record does not reflect that the veteran's
post traumatic stress disorder was manifested by more than
considerable impairment of social and industrial adaptability
prior to August 17, 1992.
JA 53. The Board's finding of fact, JA 53, does not address whether Mr. Baxendale's
disability due to post traumatic stress disorder caused him to be unable to work and
therefore would, have entitled him to consideration of a total rating. The VA's rating
schedule for mental disorders at the time relevant to this appeal required the ass/gnment
of a 100% rating when a veteran was unable to work due to his psychiatric disability. See
Johnson v. Brown, 7 Vet. App. 95 (1994).
Under the interpretation relied upon by the Veterans Court, the VA is relieved
from its duty to obtain a necessary medical opinion to make a decision on the claim. Mr.
Baxendale's claim was for the earliest possible effective date for his award of increased
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Condition
compensation. The Board found that the VA had obtained all relevant evidence
necessary for disposition of Mr. Baxendale's claim, but the VA did not obtain a medical
opinion necessary to make that decision.
The fact finding by the Board went to the narrow conclusion, "The evidence of
record does not reflect that the veteran's post traumatic stress disorder was manifested
by more than considerable impairment of social and industrial adaptability prior to
August 17, 1992." JA 53. The reason that the evidence of record did not reflect more
was the failure of the VA to develop facts pertinent to whether Mr. Baxendale was unable
to work due to his psychiatric disability. This is the prejudicial effect of the interpretation
relied upon by the Veterans Court. Mr. Baxendale did not overstate the VA's duty to
assist. Instead, the Veterans Court interpreted the duty too narrowly.
Because Mr. Baxendale was seeking an earlier effective date for a condition for
which he was already service-connected, he was entitled to the assistance of the VA in
developing facts pertinent to that claim. When the Veterans Court failed to require the
VA to comply with its duty to assist under 38 U.S.C. _ 5103A(d)(1), it misinterpreted that
statute.
Conclusion
The decision of the Veterans Court should be reversed because the Veterans Court
impermissibly limited the VA's duty to assist. This determination misinterpreted 38
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C.F.tL _ 3.103(a). The interpretation relied upon by the Veterans Court tO affirm the
Board's decision should be reversed. The Veterans Court should be ordered to remand
Mr. Baxendale's claim to the Board with instructions to the VA to provide Mr. Baxendale
with assistance in developing facts pertinent to his claim to include obtaining, if
necessary, a retrospective medical opinion.
Respectfully Submitted,
KENI_ETH M. CARPENTER
CARPENTER, CHARTERED
1525 Southwest Topeka Boulevard
Post Office Box 2099
Topeka, Kansas 66601-2099
(785)357-5251
Attorney for the Appellant
Michael R. Baxendale
Certificate of Compliance
I certify that this brief complies with the Court's type-volume limitation rules.
This brief was printed in Garamond font at 14 points. According to the word-count
calculated, using WorclPerfect v.11, this brief contains a total of 5,131 which is within the
14,000 word limit.
KermXeth M. Carpenter \-
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CAVC DECISION
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 04-2492
MICHAEL R. B,_O_NDALE, APPELLANT,
V.
R. JAMES NICHOLSON,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Michael R. Baxendale, through counsel, appeals an
October 29, 2004, Board of Veterans' Appeals (Board) decision denying entitlement to an effective
date earlier than August 17, 1992, for the assignment era 100% disability rating for his service-
connected post-traumatic stress disordor'(PTSD). Record (R.) at 1-14. This appeal is timely, and
the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge
disposition is appropriate. See F_rankel v. Derwinski, .1 Vet.App. 23, 25-26 (1990). For the
following reasons, the Court will affirm the Board's October 29, 2004, decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from February 1969 to August'
1970. R. at 18. In an August 1991 decision, a VA regional office (Re) awarded an increased
disability rating of 50% for the appellant's service-connected PTSD. R. at 24-25. The decision lists
"VFW" as having power ofattoruey. R. at 25.
• On January 4, 1993, the Re received a letter from Kenneth M. Carpenter, sent on behalf of
the appellant, which states that on May 8, 1992, Mr. Carpenter submitted a VA Form 2-22a,
Appointment of Attorney or Agent as Claimant's Representative, and requests that the Re accept the
• ) )
letter as a request for, among other things, a claim for an increased rating for PTSD. R. at 29. In a
December 1995 decision, the Re awarded a 100% disability rating for PTSD, effective January 4,
1993. R. at 32-35. The RO decision lists "K. Carpenter" as having power of attorney. Id.
On February 5, 1996, the Re received from Mr. Carpenter a Notice of Disagreement
regarding the RO's December 1995 decision. R. at 40. The letter states that enclosed with the Notice
of Disagreement is a May 8, 1992, informal claim, and the letter specifically states that the appellant
seeks an effective date of May 8, 1992, for the assignment era 100% disability rating. I'd. A copy
era letter dated May 8, 1992, was received by VA on February 5, 1996. R. at 37-38. The letter
states that a properly executed VA Form 2-22a is enclosed, requests that the Re accept the letter as
an informal claim for a 100% disability rating for PTSD, and is signed by Mr..Carpenter. R. at 37.
On appeal, in an October 1998 decision, the Board awarded _n earlier effective date of
August 17, 1992, for the assignment of the 100% disabiiityrating.for PTSD. R. at 55-59. TheBoard
found that the appellant's increased rating claim was filed on January 4, 1993. R. at 57. However, '
the Board determined that August 17, 1992, was "the earliest date as of which it is factually
ascertainable that an increase in disab!lityhad occurred." R. at 58. This date corresponds to the date
of a memorandum l_om a VA psychiatrist stating that the appellant should not work because any
change in his stress level would seriously harm his tenuous emotional state. R. at 27. Because the
date of the letter was within the one year prior to the date of the increased rating claim, the Board
applied 38 C.F.R. § 3.400(o)(2) (1998) and assigned an effective date of August 17, 1992. R. at 57.
The/eafler,the Comit remanded thismattertwice fortheBoard todiscussVA's compiiance
with the Veterans Claims AssistanceAct of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.2096.
Baxendale v.Principi,18 Vet.App. 7 (200I)(table);Baxendale v.Principi,18 Vet.App. 419 (2003)
(table);R. at75-80, 115-19. In May 2004, theRO sentthe appellanta letterrequestingadditional
information relatedto his claim. R. at 204-08. In July 2004, the RO issued a Supplemental
Statement ofthe Case thatcontinued todeny an effectivedateearlierthanAugust 17, 1992, forthe
award era 100% disabilityratingforPTSD.
On October 29, 2004, the Board issuedthe decisionpresentlyon appeal. R. at 1-14. The
Board determined thattheappellantfiledhisratingincreaseclaim on January 4, 1993. R. at3. The
Board alsodetermined thatthe July 2004 VA letterprovided the noticerequiredby the VCAA.
"''! )
R. at 5. The Board considered the need for a medical opinion to determine whether an increase in
disability was factually ascertainable in the one year prior to the filing of the increased rating claim,
but determined that the evidence of record was "sufficient to establish the necessary factual basis"
for the Board's conclusions and because the Board determined that any opinion rendered 14 years
later would be purely speculative. R. at 7. The Board then discussed the evidence of record from
1991 and 1992 and determined that the August 17, 1992, the date of the VA psychiatrist's report, was
the earliest date on which the record indicated that a disability rating greater than 50% was
warranted. R. at 11. Applying 38 C.F.R. § 3.400(o)(2), the Board determined that the appropriate
effective date for the award of a 100% disability rating for PTSD was August 17, 1992. R. at 13- 14.
H. ANALYSIS
A. Parties' Arguments
The appellant presents four arguments on appeal. First, he argues that the Board failed to
, apply 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) correctly because it did not develop
evidence from the one year'prior to the date he filed his rating increase claim. Appellant's Brief(Br.)
at 8-12. Second, he argues that the Board failed to apply 38 U.S.C. § 5103A(d) properly by not
affording him a medical opinion to determine when he first became 100% disabled, ard. at 12-14.
Third, he argues that the Board failed to apply 38 C.F.R. § 3.155(a) (2006) bynot accepting the letter
dated May 8, 1992, as the rating increase claim. Id. at 14-16. Finally, he argues that VA did not
comply with.the notice requirements of 38 U.S.C. § 5103(a). Id. at 16-27.
The Secretary argues that the Board's decision should be affirmed because it is supported_y
a plausible basis in the record and an adequate statement of reasons or bases. Secretary's Br. at 8-12.
Regarding the. appellant's general assertions that the Board did not develop the facts necessary to
apply'38 U.S.C. § 51100))(2) and 38 C.F.R. § 3.400(o)(2) correctly, the Secretary states that the
appellant points to nothing in the record to support his arguments, ld. at 12-13. The Secretary also
argues that the Board properly determined that no additional medical opinion is necessary to decide
the claim because there is evidence of record regarding the severity of the appellant's PTSD dated
prior to August 17, 1992. Id. at 13-15. The Secretary also argues that the appellant has failed to
show that the Board's determination that no claim was filed on May 8, 1992, was clearly erroneous.
) )
Id. at 15. Regarding VA's notice obligation, the Secretary argues that the notice obligations do not
•apply to the earlier effective date claim, or in the alternative, that the May 2004 VA letter satisfied
the duty to notify or that the appellant was not prejudiced by any defect in notice. Id. at 16-23.
In reply, the appellant argues that it is not his duty to point to records that show an increase
in disability within me erie year prior to him filing a claim, but that it is VA's duty to obtain such
evidence. Reply Br. at 6-7. Regarding the date of his increased rating claim and the letter dated May
8, 1992, he argues that any presumption of administrative regularity has been rebutted in this case
because it appears that VA changed the power of attorney even though there is no VA Form 2-22a
of record. Reply Br. at 10-11. All other arguments presented in the appellant's reply brief largely
• mirror those in his principal brief.
B. Duty to Assist
The appellant presents a generalized and vague argument that VA has failed to develop facts
necessary to determine the date on which his PTSD worsened such that be would be entitled to a
100% disability rating. Appellant's Br. at 8-9. As best as the Court can determine, he argues that
it was VA's obligation to find evidence indicating that his PTSD increased in severityprior to August
17, ;1992. Id. at 9. In fact, after th.e Secretary correctly indicated that the appellant pointed to no
records that VA failed to obtain (Secretary's Br. at 13), the appellant responds that it is not Ks burden
to point out such records (Reply Br. at 6).
The appellant grossly overstates VA's duty to assist. Apparently, the appellant feels that it
is VA's obligation to obtain records that he not only failed to identify to VA, but that he earmot now
identify to the Court. This is. simply.not the case. See, e.g., Loving v. Nieholson, 19 Vet.App. 96,
100-03 (2005) (noting that VA's duty to obtain records under 38 U.S.C. § 5103A only extends to
relevant records adequately identified by the appellant); Gobbet v. Derwinski, 2 Vet.App. 470, 472
(1992) (noting that the duty to assist is "not a duty to prove a claim with the claimant only in a
passive role" and that the duty to assist "is not a license for a 'fishing expedition' to determine if there
might be some unspecified information which could possibly support a claim").
However, the appellant also alleges a specific defect in the duty to assist- the Board's refusal
to order a so-called "retrospective" medical opinion to determine the date on which the appellant's
PTSD worsened. AppeUant's Br. at 12-14. In disability compensation claims, VA must provide a
4
"'i /
claimant with a medical examination or medical opinion when there is (1) competent evidence of
a current disability or persistent or recurrent symptoms era disability; and (2) evidence establishing
that an event, injury, or disease occurred in service or that certain diseases manifested during an
applicable presumptive period; and (3) an indication that the disability or persistent and recurrent
symptoms of a disability may be associated with the veteran's service or with mother service-
connected disability; but (4) insufficient competent medical evidence for the Secretary to make a
decision on the claim. 38 U.S.C. § 5103A(d)(2); see Paralyzed Veterans of Am. v. Sec'y of Veterans
Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003); 38 C.F.R, § 3.159(c)(4) (2006). The determination
of whether there is sufficient competent medical evidence of record to decide the claim is generally
a question of fact that the Court will review under the "clearly erroneous'; standard. See McLendon
v. Nicholson, 20 Vet.App. 79, 8.4-85 (2006).
The Secretary argues that the Board's conclusion that there was sufficient medical evidence
to decide the claim without obtaining a new medical opinion is supported by substantial evidence
of record. Secretary's Br. at 14-15. Upon review of the Board's decision and the record'on appeal,
the Court _igrees. The Board reviewed the extensive records of treatment in 1991 and 1992 before
finding that the August 17, 1992, VA psychiatrist's report was the earliest evidence of record
indicating an increase in disability. R. at 10-12; see R. at 130-57. In fight of this evidence and the
appellan, t's failure to discuss why it was insufficient, the Board's conclusion that there was sufficient
medical evidence of record to decide _e claim is not clearly erroneous and, theret_ore, remand for
a new VA medical opinion is not warranted. See McLendon, 20 Vet.App. at 85.
C. Dutyto Notify
As amended bythe VCAA, 38 U.S.C. § 5103(a) requires, with respect to all elements era
claim, that VA inform the claimant of any information and evidence not of record (I) that is
necessary to substantiate the claim; (2) that VA will seek to obtain; and (3) that the claimant is
expected to provide. 38 U.S.C.. § 5103(a); seeDingess v. Nicholson, 19 Vet.App. 473,486 (2006).
In addition, 38 C.F.R. § 3.1590))(1) (2006) imposes a fourth requirement that VA "request that the
elaimaut provide any evidence in the claimant's possession that pertains to the claim." See Pelegrini
v. Principi, 18 Vet.App. 112, 121 (2004). Finally, a claimant must be given notice in accordance
with section 5103(a) and § 3.159(b)(1) "prior to the initial decision in the case." Mayfield v.
•) )
Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006)(emphasis added); see also Pdegrini, 18 Vet.App.
at 120. Failure to comply with any of these requirements may constitute remandable error. See
Pelegrini, 18 Vet.App. at 121-22; Quartuccio v. Principi, 16 Vet.App. 183, 188 (2002)•
In Dingess, the Court held that once a claimant has been awarded service connection, a\
disability rating, and an effective date, section 5103(a) has served its purpose and "its application is
no longer required because the claim has already been substantiated." 19 Vet.App. at 490; see
38 U.S.C. § 5103(a) (requiring the Secretary to notify the appellant of information and evidence
necessary to "substantiate the claim"). The Court determined hhat when a claim was substantiated
prior to the enactment of the VCAA, VA has no further duty to notify under section 5103(a), as
amended by the VCAA. See id. at 493,499-500 (applying this holding to the appellants' claims for
service-eormeetion for PTSD, which had been substantiated before the enactment of the VCA.A).
In his brief, the Secretary argues that the section 5103(a) duty to notify, as amended by the
VCA.A, does not apply to the appellant's earlier effective date claim. Secretary's Br. at 18 n. 1. In
light of Dingess, the Court agrees. In this case, the December 1995 Re decision awarded a disability
rating of 100% (the highest rating possible), and an effective date for the increased rating. R. at 32-'
35. Thus, the appellant's increased rating claim was substantiated in December 1995, prior to the
November 2000 enactment of the VCAA, and section 5103(a) notice is not applicable to this elaim.l
See Dingess, supra.
D. Date of Claim
In his principal brief, the appellant'presents a general allegation that the Board misapplied
38 C.F.R. § 3.155(a) by not finding May 8, 1992, to be the date of an informal claim for a rating
increase based on the letter dated May 8, 1992. Appellant's Br. at 14-I 6. In response, the Secretary
presents an equally generalized argument that the Board's determination that no claim Was received
by VA prior to January 4, 1993, was not clearly erroneous. Secretary's Br. at 15.
Even if'section 5103(a) applied in this case, the Secretary has presented a persuasive argument that any notice
error was not prejudicial because the appellant's counsel (who has represented the appellant throughout the pendencyof this claim) had actual knowledge of the evidence necessary to establish entitlement to an earlier effecdve date, asdemonstrated by his August 2004 arguments to the Board requesting a VA naedical opinion. Secretary's Br. at 22 (citingR. at 225 and 226). See Overton v. Nicholson, 20 Vet.App. 427, 438-39 (2006) (attributing the actions of an attorneyto his client); Mayfield v. Nicholson, 19 Vet.App. 103, 125 (2005)(citing the appellant's request for a medical opinionas actual knowledge of the need for such an opinion), rev_d on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
) )
In the decision on appeal, the Board considered the appdlant's argument that he mailed the
letter dated May 8, 1992, on May 8, 1992, when it determined the date on which the appellant filed
hi s increased rating claim. R. at 11-12. However, the Board determined that, under the presumption
of administrative regularity, the absence of a date-stampexl copy of the May 8, 1992, letter in the
record (other than the copy received by the Re in 1996) precluded a finding that there was an
informal claim filed prior to January 4, 1993. R. at 12-13.
"There is a presumption of regularity that public officers perform their duties' '"correctly
fairly, in good faith, and in accordance with law and governing regulations."'" Marsh v. Nicholson,
19 Vet.App. 381,385 (2005) (quoting Alaska Airlines, Inc. v. Johnson, 8 F..3d 791,795 (Fed. Cir.
1993)). Courts presume that, "'in the absence of clear evidence to the contrary,'" public officers have
'"properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet.App. 62, 64 (1992) (quoting
United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).
The date on which a claim is filed is not determined by when a claimant submits a claim, but
instead is determined by when it is received by VA. See 38 U.S.C. § 5110(a) (stating the general rule
that an effective date "shall not be earlier than the date ofr'eceipt of application" (emphasis added)),
(b)(2) (allowing an effective date of an award of increased compensatj'on on the date an increase in
disability is ascertainable "if application is received within one year from such date" (emphasis
added)); 38 C.F.R. § 3.155(a) (requiring VA to forward an application to a claimant "[u]pon receipt
of an informal claim" (emphasis added)). The appellant's general argument that the Board
misapplied 38 C.F.R. § 3.155'(a) by not finding May 8, 1992, to be the dateon which he filed an
informal claim ignores the absence of any indication in the record that VA received the May 8, 1992,
letter prior to 1996. See R. at 37-38. In this case, the Board considered the presumption of
administrative regularity and determined that the absence of evidence indicating that the May 8,
1992, letter was received by VA before 1996 was controlling. R. at 12. The appellant has pointed
to no "clear evidence to the contrary" to rebut the presumption that, ifVA received the May 8, 1992,
letter in 1992, that it would be in his claims file. "Ashley, 2 Vet.App. at 64. Thus, the Court finds
no error in the Board's application of the presumption of administrative regularity in this case and
the generalized arguments regarding the misapplication of § 3.155(a) presented by the appellant in
his principal brief lack merit.
j- • _°,.
I )
In his reply brief, the appellant presents for the first time on appeal two specific arguments
related to the presumption of administrative regularity. First, he asserts that he should be entitled
to a presumption that when Mr. Carpenter placed the May 8, 1992, correspondence in the mail, it
was timely delivered to VA. Reply Br. at 10-11. Second, he argues that VA did not follow its
procedures because it accepted the January 3, 1994, document sent by Mr. Carpenter as a rating
increase claim without a properly executed VA Form 2-22a designating Mr. Carpenter as the
appellant's representative. Reply Br. at 11. Presuming that VA would not change the appellant's
representative without a properly executed VA Form 2-22a, the appellant argues that VA must have
received the May 8, 1992, letter in 1992. Id.
These arguments do not appear in the appellant's principal bde£ The Court has repeatedly
discouraged parties fi'om raising arguments that were not presented in the initial briefs to the Court.
See Carbine v. West, 168 F.3d 32, 34 (Fed. Cir. 1999), aff'g 10 Vet.App. 507, 511 (1997) (declining
to review argument first raised in a reply brief); Untalan v. Nicholson, 20 Va.App. 467, 471 (2006);
Fugere v. Derwinski, i Vet.App. 103, 105 (1990) (stating that "[a]dvancing different arguments at
successive stages of the appellate process does not serve the interests of the parties or the Court").
The purpose of a reply brief is to "reply to the brief ot_ the appellee," Carbine, 168 F.3d at 34
(internal quotation omitted), and is not to present new arguments. Nothing in the Secretary's vague,
general assertion that the Board properly applied 38 C.F.R. § 3.155(a) reasonably evokes the specific
arguments first presented in the appellant's reply brief. The proper place for the appellant to have
• raised these specific arguments was in his principal brief. Because these arguments were not
presented in the appellant's principal brief, this Court need not address them. See Carbine, supra.
Nevertheless, rebutting the presumption of administrative regularity would not automatically
result in reversal. Accepting May 8, 1992, as the date of the claim in this case does not disturb the
Board's independent factual conclusion that August 17, 1992, is the earliest date on which an
increase in the appellant's disability is shown. R. at 3; see also R. at 13 (Board determining that the
adjudication of the claim turns, not on the date the claim was received, but on the date on which an
increase" in disability is factually ascertainable). As the appellant makes clear in his reply brief, he
is not challenging the factual conclusions reached by the Board. Reply Br. at 3-4. Rather, he argues
that the Board's effective date determination was not made in accordance with law. Id. The Court
hasalready rejected these arguments. Thus, even accepting May 8, 1992, as the date of the claim,
the Board's finding that an increase in disability did not occur until August 17, 1992, remains. Under
38 U.S.C. § S110(b)(2) and 38 C.F.R. § 3.400(o)(2), the effective date of the appellant's 100%
disability rating can be no earlier than the date the evidence shows an increase in disability had
occurred. In this ease, that date would be August 17, 1992. See R. at 3.
IH. CONCLUSION
After consideration of the appellant's and the .Secretary's pleadings, and a review of the
record, the Board's October 29, 2004, decision is AFFIRMED.
DATED: DEC I 3 2006
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
Certificate of Service
I certifythatthe originaland twelve copies of the foregoing opening briefhave
been sentto the Clerk,United StatesCourt ofAppeals forthe FederalCircuit,by United
Parcel Serviceovernight delivery,and two copies have been served by United Parcel
Serviceovernight delive_ on the 30_ day of April,2007, addressed to:
Robert Chandler, Esq.
United States Department of Justice
Civil Division, Commercial Litigation Branch
1100 L Street, N. W., Room 12002
Washington, District of Columbia 20530
Kenne_la M. Carpenter_
-22-
