Veteranclaims’s Blog

July 10, 2012

Sellers v. Shinseki, No. 08-1758 (Argued November 9, 2011 Decided June 26, 2012);

Filed under: Uncategorized — Tags: , , , — veteranclaims @ 4:52 pm

Excerpt from decision below:
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.”

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).”

“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.”

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.”
—————————————————-

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. Previous HitSellersNext Hit, 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 “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].
1

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 Previous HitSellersNext Hit, 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
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
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:
Onseparationexam[ination], [theveteran]
complainedofdecreasedperipheralvision
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 February2004, 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
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
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

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
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) BeverlyCole 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
OnMarch11,2005, the appellant, through his representative, filed his
NODwith theJanuary
2005 RO decision. R. at 332. On May 3, 2005, the appellant filed a
statement setting forth more
fullythe 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 monthlycompensation 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)”linecontainsthreeentries:(1)”VAForm 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.
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.
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
7
6

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 Iget 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 January2005 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
copyof 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 decision maker 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.
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
9

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 theymust
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)(statingthatit is a “well-established judicial doctrine that
anystatutorytribunalmust
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 Previous HitSellersNext Hit, BVA 08-1758, at 6, and there is no
allegation of fraud.
However, the Secretaryargues that the June 2004 RO decision is
merelyprovisional because
it lacks indicia of a binding RO decision, includingclear 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 Previous HitSellersNext Hit, 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 furtherobserved 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
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
10

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 forassistancein
perfectingan 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) (
addingthat 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 Previous HitSellersNext Hit, 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
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.
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
12
11

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
SeeClarkv.Principi,15Vet.App.61,62-64 (2001)(holdingthat Board’s ”
mailingdefect
was cured by the appellant’s actual receipt of a copy of the June 1999
Board decision in January
2000″); cf. Hauckv. Brown, 6 Vet.App. 518, 519 (1994)(statingthat notice
defects arenot overcome
where there is no evidence of actual receipt). Contraryto 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
thedecision.”). Similarly,whereaclaimant demonstratesactual receiptofanRO
decisionandnotice
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.
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
13

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
notificationletter,securedtheRO Chief’s signature,andaffixedtheDenver,
Colorado,streetaddress
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
2004RO
decisionandaccompanyingnotificationletterdemonstratedthattheJuly1988RO
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
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
14

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
becauseit wasnotpromulgatedconsistentwith RO decision-authorization
procedure. TheSecretary
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”(aschedule 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 ServiceCenter,
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 January2005 RO decision is void ab initio.
16
The January2005
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 January2005 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 Previous HitSellersNext Hit, 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 Previous HitSellersNext Hit, 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 mayhave 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 authorityfor [RO] decisions.It is
notdisputed
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 Previous HitSellersNext Hit, BVA 08-1758, at 11. TheBoard explained that
the RO did not abdicate
decisionmakingauthorityto 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
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).
18
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 bypersons
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.
Contraryto 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
TheCourt cannottolerateasimilarlyopaque,obfuscatoryrevisionprocess in
thiscasemerely
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
efficiencyandefficacymeasures in theadjudicationprocess,
suchassupervisoryreviewoffront-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. Previous HitSellersNext Hit in the normal course of business. The majority hold
that, because Mr. Previous HitSellersNext Hit
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. Previous HitSellersNext Hit, is undated, purportedly awards
Mr. Previous HitSellersNext Hit 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. Previous HitSellersNext Hit.
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
doesthis viewopenapandora’s box
ofmistakenlyreleasedorfraudulentlyacquireddrafts, especially
undertheSecretary’s currentprovisionthatrepresentatives
mayreviewdecisionsbeforetheirrelease,
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 bythe 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. Previous HitSellersNext Hit 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. Previous HitSellersNext Hit complained of
flashing lights and constricted field of vision, (2) Mr. Previous HitSellersNext Hit 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. Previous HitSellersNext Hit 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 byprogressive 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 denybenefits
because Mr. Previous HitSellersNext Hit did
not have RP.
Rather, the RO denied benefits because Mr. Sellers’s RP was considered a
constitutional ordevelopmental abnormality(CDA)thatwasinheritedandnot
aggravatedin 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 byGeneral 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. Previous HitSellersNext Hit
entered service without
anynotation that he had RP, his in-service manifestation of RP is presumed
serviceconnected unless
it is shown by clear and unmistakable evidence that RP existed prior to
service and was not
aggravated byservice. 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. Previous HitSellersNext Hit 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. Previous HitSellersNext Document 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
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
22

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1 Comment »

  1. In the Jernigan vs.Shinseki Case # 10-1226, the veteran filed a motion for a full court decision on July 10, 2012.

    Comment by B. P. Jernigan — July 11, 2012 @ 8:58 pm


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