Veteranclaims’s Blog

September 18, 2012

FedCir, Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b); VA’s Failure to Fulfill an Obligation

Filed under: Uncategorized — veteranclaims @ 4:52 pm

Excerpt from CAVCBAR.net Article below:
“The Federal Circuit, however, dismissed the government’s argument, finding that 38 C.F.R. § 3.156(b)
does not provide discretion in its wording, and that when an RO concludes that a submission in question also
supports a new claim for an increased rating, “neither law-nor logic-dictates that evidence supporting a
new claim cannot also constitute new and material evidence relating to a pending claim.”
Therefore, the Federal Circuit held that because 38 C.F.R. § 3.156(b) requires that VA treat new and
material evidence as if it were filed in connection with the pending claim, the VA must assess any evidence
submitted during the relevant period and make a determination as to whether it constitutes new and
material evidence relating to the old claim.
VA, in fact, conceded at oral argument that it must make
two determinations with respect to submissions received during the period for appealing a decision:
(1) whether the submission contains new and material evidence relating to a pending claim, and (2) whether
it should be treated as a new claim.
The Federal Circuit also found that, in light of the BVA’s statutory obligation to provide adequate
reasons and bases for its findings and conclusions and because the record did not contain any analysis
regarding whether the February 1998 submission contained new and material evidence, it could not be
presumed that VA implicitly considered, but rejected, the possibility that Mr. Bond’s February 1998
submission contained new and material evidence. “Such a presumption would effectively insulate the VA’s
errors from review whenever it fails to fulfill an obligation, but leaves no firm trace of its dereliction
in the record.”

Consequently, the Federal Circuit found that the CAVC erred in holding that, because the RO treated
Mr. Bond’s February 1998 submission as a claim for an increased rating, the VA satisfied its obligations under
38 C.F.R. § 3.156(b). The case was vacated and remanded for proceedings consistent with its opinion.”
==========================

Reporting on Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir.
2011).

In Bond v. Shinseki, decided on October 7, 2011, the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) held that 38 C.F.R. § 3.156(b)
requires that the Department of Veterans Affairs (VA)
evaluate evidence received during the relevant period
to determine whether it contains new and material
evidence relevant to a pending claim, even if the new
submission may support a new claim.
On appeal before the Federal Circuit was a February
26, 2010 decision by the United States Court of
Appeals for Veterans Claims (CAVC). The veteran,
Richard D. Bond, filed a claim for service connection
in October 1996, which was granted by the Regional
Office (RO) in a May 1997 rating decision. In
February 1998, Mr. Bond submitted a document
indicating that he was seeking an increased rating,
and attached a medical record by a psychologist.
In a March 30, 2007 decision, the CAVC determined
that Mr. Bond failed to show new and material
evidence was submitted within the appeal period of
the May 1997 rating decision because the RO treated
the evidence submitted in February 1998 as a new
claim for an increased rating. This March 30, 2007
CAVC decision also vacated and remanded to VA’s
Board of Veterans’ Appeals (BVA) the issue of
entitlement to an effective date earlier than July 7,
1999, for a total disability rating based on individual
unemployability (TDIU).
While on remand, the BVA assigned an effective date
of February 11, 1998 for the TDIU rating. Mr. Bond
appealed that decision and argued before the CAVC
that the February 1998 submission constituted new
and material evidence to the May 1997 RO decision,
thus entitling him to an effective date earlier than
February 11, 1998. The February 26, 2010 CAVC
decision affirmed the BVA’s decision; the CAVC
rejected Mr. Bond’s argument based on res judicata,
finding that the March 30, 2007 CAVC decision ruled
on the issue regarding new and material evidence.
Mr. Bond argued before the Federal Circuit that the
CAVC misinterpreted 38 C.F.R. § 3.156(b) by finding
that VA had satisfied the regulation’s requirements
without having determined whether the February
1998 submission contained new and material
evidence. Rather, Mr. Bond argued, the regulation
requires the VA to review any evidence submitted
during the appeal period and to make a determination
as to whether it constitutes new and material
evidence relating to an existing claim before deciding
whether the submission may also constitute a new
claim.
The government first argued that the case fell outside
the Federal Circuit’s jurisdiction because Mr. Bond
was challenging the CAVC’s factual determination.
The Federal Circuit disagreed and noted that Mr.
Bond argued that the CAVC misinterpreted 38 C.F.R.
§ 3.156(b). The government then argued with respect
to the merits of the issue before the court that
because the “plain language” of the cover letter
attached to Mr. Bond’s February 1998 submission
stated he was requesting an increased rating, both the
RO and the CAVC properly treated the submission as
a new claim, rather than as new and material evidence
relating the October 1996 claim. The government
asserted that where a claimant asks for an increased
rating in a letter attached to newly submitted
evidence, the RO does not need to consider whether
the underlying evidence constitutes new and material
evidence relating to an existing claim, regardless of
the nature of the evidence submitted and its
relationship to any pending claims.
The Federal Circuit, however, dismissed the
government’s argument, finding that 38 C.F.R.
§ 3.156(b) does not provide discretion in its wording,
and that when an RO concludes that a submission in
question also supports a new claim for an increased
rating, “neither law-nor logic-dictates that evidence
supporting a new claim cannot also constitute new
and material evidence relating to a pending claim.”
Therefore, the Federal Circuit held that because
38 C.F.R. § 3.156(b) requires that VA treat new and
material evidence as if it were filed in connection with
the pending claim, the VA must assess any evidence
submitted during the relevant period and make a
determination as to whether it constitutes new and
material evidence relating to the old claim. VA, in
fact, conceded at oral argument that it must make
two determinations with respect to submissions
Bond,
continued on page 14.

received during the period for appealing a decision:
(1) whether the submission contains new and material
evidence relating to a pending claim, and (2) whether
it should be treated as a new claim.
The Federal Circuit also found that, in light of the
BVA’s statutory obligation to provide adequate
reasons and bases for its findings and conclusions and
because the record did not contain any analysis
regarding whether the February 1998 submission
contained new and material evidence, it could not be
presumed that VA implicitly considered, but rejected,
the possibility that Mr. Bond’s February 1998
submission contained new and material evidence.
“Such a presumption would effectively insulate the
VA’s errors from review whenever it fails to fulfill an
obligation, but leaves no firm trace of its dereliction
in the record.”
Consequently, the Federal Circuit found that the
CAVC erred in holding that, because the RO treated
Mr. Bond’s February 1998 submission as a claim for an
increased rating, the VA satisfied its obligations under
38 C.F.R. § 3.156(b). The case was vacated and
remanded for proceedings consistent with its
opinion. #
Bradley Hennings is a Counsel at the Board of
Veterans’ Appeals.

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