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April 2, 2009

Secretary duty to consider every benefit entitled, Morris v. Derwinski, No. 90-305

We found two items if interest in this clase: 1. the Secretary’s “duty to consider every benefit to which that claimant may be entitled.” and 2. the fact that the “RO wrote back to the attorney on April 18, 1980, suggesting the various forms of evidence that could be submitted to establish entitlement to a claim. R. at 41.”

Akles v. Derwinski, U.S. Vet. App. No. 90-390 (Jan. 11, 1991), where the Court found that the Secretary is under a duty to consider every benefit to which that claimant may be entitled.
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The RO wrote back to the attorney on April 18, 1980, suggesting the various forms of evidence that could be submitted to establish entitlement to a claim. R. at 41.

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U.S. Court of Appeals for Veterans Claims
View | Download | Details Previous document | Next document
. 90-305
MORRIS.305
Search Terms: GONZALEZ SULLIVAN Note: Pursuant to 38 U.S.C. ù 4067(d)(1988),
this decision will become the decision
of the Court thirty days from the date hereof.

UNITED STATES COURT OF VETERANS APPEALS

No. 90-305

John E. Morris, Appellant,
v.

Edward J. Derwinski,
Secretary Of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Submitted December 6, 1990 Decided May 24, 1991)
[change margins on page 2 to 1″]

Robert M. McHenry was on the brief for appellant.

Raoul L. Carroll, General Counsel, Barry M. Tapp, Assistant
General Counsel, Andrew J. Mullen, Deputy Assistant General Counsel,
and David W. Engel were on the brief for appellee.

Before NEBEKER, Chief Judge, and KRAMER and FARLEY Associate
Judges.

FARLEY, Associate Judge, filed the opinion of the Court, in which
NEBEKER, Chief Judge, joined. KRAMER, Associate Judge, concurring,
filed a separate opinion.

FARLEY, Associate Judge: Appellant, John E. Morris, is appealing
from a December 29, 1989, Board of Veterans’ Appeals (Board or BVA)
decision upholding the denial of entitlement to an effective date earlier
than November 7, 1985, for compensation based on service connection for
tinea pedis. We hold that because appellant failed to appeal the
disallowance of his 1962 claim for service connection for foot problems
and abandoned his 1979 claim for service connection for foot problems, the
BVA did not err in concluding that the effective date for appellant’s
award of service connection for tinea pedis
was November 7, 1985, the date he filed a new claim for the condition.
Accordingly, the BVA decision of December 29, 1989, is affirmed.

I.
Appellant, John E. Morris, served on active duty in the United States
Army from 1957 to 1959. On August 2, 1962, appellant filed an initial
claim for service connection for a “skin condition of both feet.” R. at
20. On August 7, 1962, the Little Rock, Arkansas, Department of Veterans
Affairs (formerly Veterans’ Administration) (VA) Regional Office (RO) sent
appellant a letter requesting he submit evidence that his condition ”
existed from the date of your discharge and still exists.” R. at 24. The
letter provided that if evidence was not received by the VA within one
year, benefits would not be payable based on that claim.
Appellant was examined by a VA physician on August 17, 1962, and
diagnosed as suffering from tinea pedis (athlete’s foot). R. at 27.
However, the BVA decision reports that appellant did not submit any of the
additional evidence requested by the VA and that “[i]n October 1962, the
VA notified the appellant that his claim was to be disallowed due to his
failure to submit evidence demonstrating a continuity of symptoms from the
date of discharge from service.” John E. Morris, loc. no. 936632, at 3 (
BVA Dec. 29, 1989).
On September 5, 1979, appellant reopened his claim for service
connection for “skin rash [and] blisters on both feet”, and amended his
claim to also include a claim for service connection for a back injury,
both of which were reported to have occurred in 1958. R. at 32-35.
Appellant was notified on September 18, 1979, to submit a report of a
medical examination and that it must be received by the VA within one year
from the date of the letter. R. at 36. In November 1979, appellant
submitted a report of a medical examination by his personal physician. R.
at 36. On November 19, 1979, a rating specialist noted: “Continuity
evidence as requested 8-7-62 is still needed.” R. at 38. Appellant was
notified by the RO on November 26, 1979, that he needed to submit evidence ”
that your disability has existed since the date of your discharge and
still exists.” R. at 39. On April 10, 1980, an attorney representing
appellant contacted the RO requesting information as how best to present
evidence to substantiate his client’s claim. R. at 40. The RO wrote back
to the attorney on April 18, 1980, suggesting the various forms of evidence that
could be submitted to establish entitlement to a claim. R. at 41.

No evidence was submitted by either appellant or his attorney within one year
of the notification that additional evidence was required before the claim
could be adjudicated. In fact, the record on appeal does not contain any
communication to or from appellant until 1985.
On November 7, 1985, appellant reopened his foot and back injury
claims. R. at 42-43. On February 5, 1986, the rating board denied
appellant’s claim for service connection for a skin condition of the feet (
tinea pedis), a back condition, and hypertension. R. at 58-60. Appellant
appealed this denial to the BVA which on September 16, 1986, granted
service connection for tinea pedis after the resolution of reasonable
doubt in favor of appellant. John E. Morris, loc. no. 628667 (BVA Sept.
16, 1986). Subsequently, the claim was returned to the RO for a rating
decision, and on December 3, 1986, the rating board rated appellant’s
service-connected tinea pedis as 0 percent disabling, effective November 7,
1985. R. at 89. On December 11, 1987, the rating board confirmed its
prior 0-percent rating. R. at 110. Appellant again appealed to the BVA
which on July 19, 1988, upheld the denial of a compensable rating for
tinea pedis and entitlement to an earlier effective date for his tinea
pedis service connection. John E. Morris, loc. no. 821906 (BVA July 19,
1988). The Board found that appellant had abandoned the earlier claims he
had filed in 1962 and 1979 for a skin disorder of his feet. Under 38 C.F.
R. ù 3.158(a) (1990), the Board concluded that the earliest effective
date to which appellant was entitled was November 7, 1985, the date he
reopened the claim that led to service connection being granted.
On September 16, 1988, appellant again reopened his tinea pedis claim
and submitted new evidence. R. at 129. On December 16, 1988, the rating
board awarded appellant a 10-percent rating for his service-connected
tinea pedis, effective from May 30, 1988. The rating board, however, did
not change the effective date of appellant’s 0-percent rating. On March 8,
1989, the rating board confirmed its 10-percent rating. R. at 139.
Appellant appealed to the BVA which in its December 29, 1989, decision,
John E. Morris, loc. no. 936632, at 7-8 (BVA Dec. 29, 1989), made three
findings: (1) The new evidence submitted by appellant did not provide a
new factual basis for allowance of the claim; (2) “The schedular criteria
for a rating greater than 10 percent for tinea pedis are not met”;
and (3) the BVA, in an earlier decision dated July 1988, determined that
appellant had abandoned his claims filed in 1962 and 1979 and the earliest
date from which appellant was entitled to retroactive benefits was
November 7, 1985. It is this latest BVA decision that appellant appeals
to this Court.
On appeal to this Court, appellant contends that the BVA erred in not
providing him with an effective date earlier than November 7, 1985, for
his tinea pedis condition. He argues that he did not abandon his earlier
claims which were filed in 1962 and 1979 because (1) they were never ”
ruled upon” by the VA and (2) he was never notified that such claims are
subject to abandonment pursuant to 38 C.F.R. ù 3.158(a), and (3) that the
Due Process Clause of the Fourteenth Amendment of the United States
Constitution prohibits denial of benefits without notice having been given
. He urges the Court to estop the VA from claiming that he was on
constructive notice of the statutory and regulatory provisions. The
Secretary of Veterans Affairs (Secretary) argues that appellant’s
assertions are without merit.

II.
New and Material Evidence
In Manio v. Derwinski, U.S. Vet. App. No. 90-86 (Feb. 15, 1991),
the Court stated that when a veteran seeks to reopen a claim based on new
evidence, the BVA must perform a two-step analysis.
First, the BVA must determine whether the evidence is “new and
material”. 38 U.S.C. ù 3008. Second, if the BVA determines
that the claimant has produced new and material evidence, the
case is reopened and the BVA must evaluate the merits of the
veteran’s claim in light of all the evidence, both old and
new.
Manio, slip op. 8 (citation omitted) (emphasis in original). If the
BVA determines that the evidence presented was not new and material, then
that determination would be reviewable by this Court. Manio, slip op.
at 9. On the other hand, “if the BVA determines that the evidence is ‘new
and material’, reopens and reconsiders the claim, and once again denies
the claim, that decision is subject to review on appeal to this Court
based upon the entire
record because the decision of the BVA was required to be based upon all
evidence and material of record.” Id.
Here, we must assume that the BVA found that appellant had submitted
new and material evidence because the BVA concluded that the new evidence
did not provide a new factual basis for allowance. However, this issue is
not dispositive of the case.

III.
Abandoned Claims
In both its July 19, 1988, and December 29, 1989, decisions, the BVA
concluded that pursuant to 38 C.F.R. ù 3.158(a), appellant had abandoned
his claims filed on August 2, 1962, and September 5, 1979, for service
connection for a skin disorder on his feet.
Congress has provided: “If a claimant’s application for benefits
under the laws administered by the [VA] is incomplete, the [Secretary]
shall notify the claimant of the evidence necessary to complete the
application. If such evidence is not received within one year from the
date of such notification, no benefits may be paid or furnished by reason
of such application.” 38 U.S.C. ù 3003(a) (1988). In order to implement
the veterans’ benefits program, Congress has given the Secretary the
authority “to make all rules and regulations which are necessary or
appropriate to carry out the laws administered by the [VA] and are
consistent therewith, including regulations with respect to . . . the
method of taking and furnishing [evidence] in order to establish the right
to benefits under such laws . . . .” 38 U.S.C. ù 210(c)(1) (1988).
Pursuant to his authority under 38 U.S.C. ù 210(c)(1), the Secretary has
promulgated ù 3.158(a) which provides
where evidence requested in connection with an original claim,
a claim for increase or to reopen . . . is not furnished within
1 year after the date of request, the claim will be considered
abandoned. After the expiration of 1 year, further action
will not be taken unless a new claim is received. Should the
right to benefits be finally established . . . compensation
. . . based on such evidence shall commence not earlier than
the date of filing the new claim.
38 C.F.R. ù 3.158(a) (emphasis added). Section 3.158 was initially
promulgated on February 24, 1961, and has remained substantially the same
despite revisions on
December 1, 1962, and November 9, 1987. See 26 Fed. Reg. 1571 (1961),
27 Fed. Reg. 11,887 (1962), and 52 Fed. Reg. 43,062 (1987).
This abandoned claims regulation is entirely consistent with the
command of 38 U.S.C. ù 3003(a) regarding the disposition of incomplete
claims. Where the VA notifies a claimant of the need for further evidence
and the claimant fails to respond within one year of that notice, the
claim is deemed to have been abandoned. In order for the VA to process
claims, individuals applying for benefits have a responsibility to
cooperate with the agency in the gathering of the evidence necessary to
establish allowance of benefits. This regulation, however, does not
permit the VA to sit idly by once a claim has been received. The
Secretary is under an affirmative duty to assist claimants in
understanding how to file for benefits and what evidence is required.
See 38 U.S.C. ùù 241, 3007(a) (1988).

A.
On August 2, 1962, appellant filed a claim for service connection for
a skin condition for both feet. On August 7, 1962, the RO notified
appellant that additional evidence was required in order to complete his
application for benefits. The BVA decision of December 29, 1989, reports
that the VA notified appellant in October 1962 that his claim was being ”
disallowed” due to his failure to submit additional requested evidence.
The BVA in 1988 and again in 1989 concluded that appellant abandoned his
1962 claim. Assuming the BVA decision is accurate in reporting that the
claim was denied in October 1962 for failure to furnish the required
evidence, we must disagree with the characterization of the 1962 action.
Pursuant to 38 C.F.R. ù 3.158(a) and the letter he was sent on
August 7, 1962, appellant had one year in which to submit additional
evidence to complete his application. The VA, however, did not wait the
one year to act on appellant’s claim. Instead, after only two months the
claim was adjudicated and “disallowed”. At that point it was incumbent
upon appellant to appeal the disallowance to the BVA which appellant did
not do. Under the 1962 as well as the current version of 38 U.S.C. ù
4005(b)(1) (1988) a claimant who is dissatisfied with a VA adjudication or
determination must file a Notice of Disagreement (NOD) within one year of
notice of the result of initial review or determination. If an NOD
is not filed within the prescribed time period, the action or
determination is final subject to reopening based only on new and material
evidence or clear and unmistakable error. 38 U.S.C. ùù 4004(c), 3008 (
1988); 38 C.F.R. ù 3.105(a) (1990). Here, appellant failed to file an
NOD within the prescribed time period and thus the October 1962 decision
became final.

B.
On September 5, 1979, appellant filed a claim for service connection
for a foot condition. On April 18, 1980, appellant was notified by the RO
that additional evidence needed to be submitted in order for the VA to
adjudicate the claim. Appellant not only failed to respond to the RO’s
request to provide additional evidence, he failed to respond at all. Thus,
we need not consider whether the VA’s duty to assist required that the VA
have done more then it did because appellant never even responded to the
VA.
Appellant argues that his 1979 claim was never “ruled upon” by the VA
. That is precisely the point; the VA was never able to adjudicate
appellant’s claim because appellant failed to respond to the VA’s request
for evidence. Section 3.158(a) was specifically promulgated to address
this point by deeming that claimants who fail to respond to requests for
evidence within one year are deemed to have abandoned their claim.
Appellant raises a Due Process Clause argument that he was never
notified that claims are subject to abandonment pursuant to 38 C.F.R. ù 3.
158(a). In the first place, the record supports a contrary view. In 1962
and again in 1979, the VA sent letters which outlined the evidence which
was required and advised the claimant that benefits would not be paid
unless the requested evidence was submitted. R. at 24, 36. Secondly, the
Secretary correctly argues that appellant’s contention is without legal
merit because the abandonment pursuant to 38 C.F.R. ù 3.158(a) cannot be
set aside or waived on grounds of alleged ignorance of regulatory
requirements. The Supreme Court has held that everyone dealing with the
Government is charged with knowledge of federal statutes and lawfully
promulgated agency regulations. Fed. Crop Ins. Corp. v. Merrill, 332 U.
S. 380, 384-85 (1947). Thus, regulations are binding on all who seek to
come within their sphere, “regardless of actual knowledge of what is in
the [r]egulations or of the hardship resulting from innocent ignorance.”
Id. at 385. “The ‘presumption’ that everyone knows the law is simply a
more
colorful way of stating the principle that ignorance of the law is
irrelevant.” 21 C. Wright & K. Graham, Federal Practice and Procedure
ù 5124, at 588 (1977) (footnote omitted). In the case at hand, appellant,
even though he may have been ignorant of the abandonment provisions of 38
C.F.R. ù 3.158(a), is necessarily charged with knowledge of the
regulation.
This case is distinguishable from Akles v. Derwinski, U.S. Vet. App.
No. 90-390 (Jan. 11, 1991), where the Court found that the Secretary is
under a duty to consider every benefit to which that claimant may be
entitled. Here, the Secretary properly discharged his duty by notifying
appellant that he must submit additional evidence in order to get the
claim adjudication process moving. The appellant was on notice of what
was expected of him and he failed to respond. This is not a case in which
the VA refused to consider entitlement but an instance in which a claimant
failed to perfect a ripe claim. We hold that by not responding to the
VA’s request for additional evidence within one year, appellant abandoned
the claim he filed in 1979 for service connection for a foot condition.

IV.
Effective Date for Service Connection for Tinea Pedis
There remains the issue of the effective date of appellant’s tinea
pedis rating. The BVA has determined that November 7, 1985, is the
effective date. Appellant argues the effective date should be retroactive
to the date of his initial claim filed in 1962. Two regulations control
the disposition of this issue. The abandonment regulation provides that
after a claim has been abandoned and a new claim has been filed and
approved on the reopening, the effective date of that award “shall
commence not earlier than the date of filing of new claim.” 38 C.F.R. ù
3.158(a). Section 3.400 of title 38 of the Code of Federal Regulations
sets out the effective dates for the evaluation and award of VA benefits.
When a claim is reopened, the effective date of an award is the “[d]ate of
receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R.
ù 3.400(r) (1990). When new and material evidence consisting of other
than service department records is received after final disallowance, the
effective date of an award is the “[d]ate of receipt of new claim or date
entitlement arose, whichever is later.” 38 C.F.R. ù 3.400(q)(ii) (1990).
After having failed to appeal the denial of his 1962 claim and abandoning
his claim filed in 1979, appellant filed
a new claim, or reopened his claim, on November 7, 1985. Thus, the
effective date under all of the regulations is the date the new or
reopened claim was filed: November 7, 1985.

V.
In conclusion, we hold that appellant failed to appeal the
disallowance of his claim filed in 1962, thus insuring that the VA would
not act further on his claim. We further hold that appellant abandoned
his claim filed in 1979. Thus, the BVA correctly determined that the
effective date for appellant’s service-connected tinea pedis was November
7, 1985. Accordingly, the BVA decision is affirmed.

It is so ordered.

KRAMER, Associate Judge, concurring.
The majority states on page seven of the opinion that “[i]n the case
at hand, appellant even though he may have been ignorant of the
abandonment provisions of 38 C.F.R. ù 3.158(a), is necessarily charged
with knowledge of the regulation.”
38 U.S.C ù 3003(a) (1988) states as follows:
If a claimant’s application for benefits under the laws
administered by the [VA] is incomplete, the [Secretary] shall
notify the claimant of the evidence necessary to complete the
application. If such evidence is not received within one year
from the date of such notification, no benefits may be paid or
furnished by reason of such application.
From the literal language of ù 3003(a), it is unclear whether or not a
claimant has to be notified that necessary evidence must be received
within one year and of the consequences of failure to do so. The versions
of the implementing regulation in effect in both 1962 and 1979
specifically stated that the failure of the VA to furnish notice of the
time limit for submission of evidence would not extend the one-year
period. See 38 C.F.R. ù 3.109(b) (1962 & 1979). However, by amendment
effective April 11, 1990, this provision was removed and replaced with
procedures providing for the filing by the claimant for an extension of
the one-year time limit for good cause shown and for appeal of a denial of
a requested extension. See 38 C.F.R. ù 3.109(b) (1990). Consequently,
under existing law, I believe that notification is required of both the
one-year time limit and the consequences of failing to comply with it.
Such a notification requirement is in accordance with the duty-to-assist
doctrine embodied in 38 U.S.C. ùù 3007(a), 241(b) (1988) as interpreted
by this Court in Akles v. Derwinski, U.S. Vet. App. No. 90-390 (Jan. 11,
1991). Moreover, the failure to provide such notice might raise serious
constitutional issues. Cf. GonzalezNext Hit v. Previous HitSullivanNext Document, 914 F.2d 1197, 1203 (
9th Cir. 1990) (notice of adverse decision on applicant’s Social Security
disability claim, which does not clearly state that if no request for
reconsideration is made then determination is final, violates claimant’s
procedural due process rights); Cosby v. Ward, 843 F.2d 967 (7th Cir.
1988) (when state fails to provide unemployment compensation recipients
who are seeking extended benefits with adequate notice of work search
requirements and precise issues to be determined by claims
adjudicators with respect to claimants’ eligibility to receive extended
benefits as consequence of their work search, it violates their procedural
due process rights); Christopher v. Secretary of Health and Human
Services, 702 F.Supp 41, 42-43 (N.D. N.Y. 1989) (ambiguous notice to pro
se Social Security disability applicant which could have misled her into
believing that failure to request reconsideration would not have adverse
effect on benefit determination made in future violates procedural due
process); Butland v. Bowen, 673 F.Supp. 638, 640-42 (D. Mass. 1987) (
misleading notice of denial of claim which misinformed pro se Social
Security applicant as to res judicata consequences of abandoning the
claim violates procedural due process); Dealy v. Heckler, 616 F.Supp. 880 (
D. Mo. 1984) (misleading notice to pro se Social Security applicant, that
she had right to file another claim at any time and which failed to inform
her of res judicata effect of abandoned claim, violates procedural due
process).
Interestingly, regardless of whether or not the VA in 1962 and 1979
was required to notify appellant of the time limit in which to submit
necessary evidence and the consequences of not doing so, such notice was
provided on both occasions. In a letter dated August 7, 1962, appellant
was told that:
[The] evidence [of chronicity] must be received in the
Veterans Administration within one year from the date of this
letter; otherwise, benefits are not payable on the basis of
this pending claim.
R. at 24 (emphasis added). Again, he was advised by letter dated
September 18, 1979, that:
The evidence requested should be submitted as soon as
possible, preferably within 60 days, and in any case it must be
received in the Veterans Administration within one year from
the date of this letter; otherwise, benefits, if entitlement is
established, may not be paid prior to the date of its receipt.
R. at 36 (emphasis added). Therefore, lack of notice is not at issue in
this case, not because appellant is deemed to know all relevant statutory
and regulatory provisions without notice, but because he was consistently
provided with adequate notice.

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