Veteranclaims’s Blog

September 12, 2014

Beraud v. McDonald, No. 2013-7125(Decided: September 12, 2014); New and Material; 38 C.F.R. § 3.156(b); Pending Claim

Excerpt from decision below:

“Because the Department of Veterans Affairs (“VA”) failed to determine whether evidence Beraud timely submitted after the decision on the 1985 claim was new and material under 38 C.F.R. § 3.156(b) (2014), however, that initial claim remained pending, despite the subsequent final decision. We therefore reverse and remand for further proceedings consistent with this opinion.”

=====================

“The government asks this court to allow the VA to terminate a claim when it makes a subsequent adjudication even if it failed to fulfill its duty under § 3.156(b)—a duty the government concedes is not a substantial administrative burden on the VA. Oral Arg. at 19:42–20:20, available at http://oralarguments.cafc.uscourts. gov/default.aspx?fl=2013-7125.mp3 (“No, [the § 3.156(b) determination] would not be an extreme burden on the VA.”).”

=====================

Dissenting opinion filed by Circuit Judge LOURIE.

“Reversing here has the potential to reopen determinations that were closed by final decisions that were adjudicated on the merits.”

=====================

United States Court of Appeals for the Federal Circuit
______________________
LEONARD BERAUD,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7125
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-726, Judge Alan G. Lance, Sr.
______________________
Decided: September 12, 2014
______________________
AMY F. ODOM, National Veterans Legal Services Program, of Washington, DC, argued for claimant-appellant. With her on the brief were BARTON STICHMAN and LOUIS GEORGE. Of counsel on the brief was MARY K. HOEFER, Hoefer Law Firm, of Iowa City, Iowa.

ELIZABETH M. HOSFORD, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and MARTIN F. HOCKEY, JR.,
2 BERAUD v. MCDONALD

Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel and AMANDA R. BLACKMON, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel was MICHAEL J. TIMINSKI, Deputy Assistant General Counsel.
______________________
Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Dissenting opinion filed by Circuit Judge LOURIE.
O’MALLEY, Circuit Judge.
Leonard Beraud challenges a U.S. Court of Appeals for Veterans Claims (“Veterans Court”) judgment affirming a Board of Veterans Appeals (“the Board”) decision. That Board decision set the effective date for Beraud’s service connected disability award at August 27, 2004. Beraud claims the effective date should be in 1985, when he first filed his disability claim. The Board found that Beraud’s 1985 claim for service connection became final upon final denial of an identical claim in 1990. Because
the Department of Veterans Affairs (“VA”) failed to determine whether evidence Beraud timely submitted after the decision on the 1985 claim was new and material under 38 C.F.R. § 3.156(b) (2014), however, that initial claim remained pending, despite the subsequent final decision. We therefore reverse and remand for further proceedings consistent with this opinion.

BACKGROUND
Beraud served on active duty in the U.S. Navy from
July 1974 to July 1977, and thereafter served in the naval
reserves until May 1988.
On March 23, 1985, Beraud filed a claim with a VA Regional Office (“RO”) for, inter alia, a headache disorder described as “headaches by forehead over right eye,”
BERAUD v. MCDONALD 3

allegedly resulting from head trauma while on active duty. J.A. 30, 113. On November 12, 1985, the RO sent Beraud a letter, informing him that it was having difficulty finding his service medical records and requesting that he identify his reserve units so that it could obtain records from them (“November 12 letter”).
On November 29, 1985, before Beraud responded to the RO’s request, the RO issued a rating decision denying his claim, explaining that, although the records before it documented complaints of headaches, those records showed no evidence of a chronic headache disorder. The RO informed him of the decision and of his appellate rights on December 9, 1985.
Although Beraud did not appeal this decision, on December 16, 1985, he responded to the RO’s November 12 letter, indicating the location of his additional service medical records (“December 1985 letter”). The RO never responded to the letter.
On December 29, 1989, Beraud asked the RO to reopen his previously denied claim for headaches. The RO reopened the claim, but denied that claim on the merits on February 12, 1990, finding that Beraud did not incur the headache disorder, or aggravation thereof, during his period of service (“1990 Decision”). The RO did not refer to Beraud’s December 1985 letter, nor did it mention the medical records that were the subject of the letter. Beraud did not appeal the 1990 Decision. Beraud again asked the RO to reopen his claim in 1992 and 2002, but the RO denied both requests because
it found that he had not submitted new and material evidence justifying a reopening.
On August 27, 2004, Beraud submitted to the RO an informal claim for disability compensation for the same headache disorder. In evaluating his claim, the VA considered a November 2004 VA medical opinion stating
4 BERAUD v. MCDONALD

that his headaches are attributable to a head injury he
sustained during active duty in 1975. Based on this
evidence, the RO granted Beraud service connection for
migraine headaches in a December 2004 rating decision.
The RO assigned him a fifty percent disability rating,
effective August 27, 2004, the date Beraud submitted the
informal claim.
Beraud appealed the December 2004 decision, asserting
that the effective date for his award should have been
the date he initially filed his claim for a headache disorder
in 1985. In December 2010, the Board denied Beraud’s
appeal, finding that the decision on his initial
claim in 1985 and the subsequent 1990 Decision denying
the identical claim were final. The Board also noted that
Beraud’s claims in 1992 and 2002 were now final, and
that the VA had received no other communication indicating
an intent to apply for disability compensation for a
headache disorder until August 2004. Therefore, the
Board determined that Beraud could not obtain an effective
date for his award earlier than August 27, 2004.
Beraud appealed to the Veterans Court, arguing that
his initial claim was not final because the VA never
determined whether the medical records Beraud referred
to in his December 1985 letter constituted new and material
evidence under 38 C.F.R. § 3.156(b). According to
Beraud, that new evidence gave rise to a pending, unadjudicated
claim. See Beraud v. Shinseki, 26 Vet. App. 313, 317–18 (2013).
Though the panel majority affirmed the Board decision, it first acknowledged that VA regulations and precedent make clear that a claim remains pending until the VA renders a final decision. Id. at 318. It also noted that, when the VA receives new and material evidence within the one-year appeal period after it issues a rating decision, it “must readjudicate the claim and failure to do so may render the claim pending and unadjudicated.” Id.
BERAUD v. MCDONALD 5

Citing this court’s holding in Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008), however, the majority stated that a “subsequent final adjudication of a claim which is identical to a pending claim that has not been finally adjudicated terminates the pending status of the earlier claim.” Beraud, 26 Vet. App. at 318–19. The majority thus concluded that, even if Beraud’s initial claim remained pending because the VA had not made the required § 3.156(b) determination, the 1990 Decision nevertheless terminated the pendency of that claim. Id. at 320. In reaching this conclusion, the majority also
presumed that, in making the 1990 Decision, the VA considered all relevant evidence, including the records Beraud referred to in his December 1985 letter. Id. at 320 n.4.
According to the dissent, however, because the VA never determined whether those medical records constituted new and material evidence under § 3.156(b), the initial claim remained pending despite the 1990 Decision. Id. at 322. The dissent argued that Williams is inapplicable because, here, a specific regulation—38 C.F.R. § 3.156(b)—“requires continued pendency of a claim, even where there is a subsequent final denial, if the evidence has not been considered by the adjudicating or appellate
body.” J.A. 17. Indeed, the dissent noted that the medical records which the RO said it needed in 1985 “appear to be yet unobtained.” Id. at 322.

DISCUSSION
This court reviews the Veterans Court’s legal determinations
de novo. Rodriguez v. Peake, 511 F.3d 1147,
1152 (Fed. Cir. 2008). Under 38 U.S.C. § 7292(d)(2)
(2012), except to the extent that an appeal presents a
constitutional issue, this court may not review a challenge
to a factual determination or the application of law to fact.
In pertinent part, § 3.156(b) states that “[n]ew and
material evidence received prior to the expiration of the
6 BERAUD v. MCDONALD

appeal period . . . will be considered as having been filed
in connection with the claim which was pending at the
beginning of the appeal period.” A veteran generally has
one year from the mailing date of the notice of a Board
determination to appeal. 38 U.S.C. § 7105(b)(1) (2012).
This court held in Bond v. Shinseki, 659 F.3d 1362,
1367 (Fed. Cir. 2011), that § 3.156(b) requires the VA to
“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.”
Relying on this court’s decision in Bond, Beraud asserts
that, because the VA failed to determine whether the
medical records Beraud identified in his December 1985
letter constituted new and material evidence under
§ 3.156(b), his initial claim remains pending despite the
1990 Decision.
The government responds that Bond is inapplicable
here because it did not concern the effect of a subsequent
final decision on a claim identical to a prior pending
claim. Specifically, the government asserts that nothing
in Bond stands for the proposition that the VA’s failure to
make a § 3.156(b) determination vitiates the finality of
the 1990 Decision, which Beraud did not appeal. Instead,
the government suggests that our earlier decision in
Williams trumps Bond, and controls the outcome of this
case. We disagree.
In Bond, the VA awarded a veteran service connection
for posttraumatic stress disorder. 659 F.3d at 1363.
Within one year of that award, the veteran requested an
increased rating based on additional medical records he
had obtained. Id. The VA regarded the later request as a
new claim. Id. Thus, while the VA awarded the veteran a
higher rating, it did so with an effective date that corresponded
to his second claim. Id. at 1364–65. The veteran
argued before the Veterans Court that the effective date
should have been the date of his initial claim because the
BERAUD v. MCDONALD 7

decision thereon never became final, as the VA never
determined whether the medical records he submitted
were new and material under § 3.156(b). Id. The Veterans
Court disagreed, finding that the VA did not need to
make that determination because it treated his submission
as a new claim, which then became final. Id. This
court reversed, holding that § 3.156(b) requires the VA to
determine whether subsequently submitted materials
constituted new and material evidence relating to an
earlier claim, regardless of how the VA characterizes that
later submission of evidence. Id. at 1368. We reasoned
that the VA’s characterization of Bond’s submission as a
new claim did not “foreclose the possibility that [the
submission] may have also contained new and material
evidence pertaining to” the initial claim. Id.
In Williams, the VA denied a veteran’s application for
service connection for a nervous condition, but failed to
notify the veteran of its decision. 521 F.3d at 1349. When
the VA denied another claim that the veteran subsequently
filed for the same disability, it did inform him of that
decision. Id. The veteran did not appeal, but when he
later petitioned to reopen the claim, the VA denied his
request. Id. He appealed to the Board, which ruled in his
favor and awarded him service connection effective as of
the date he petitioned to reopen the claim, rather than
the date of his original application. Id. The veteran
appealed to the Veterans Court, asserting that the Board
should have granted him the date of his initial claim as
the effective date because the claim remained pending in
light of the VA’s failure to notify him of its decision thereon.
Id. Both the Veterans Court and this court disagreed,
reasoning that the VA’s final decision denying his second
claim terminated the pending status of his initial claim,
and thus upheld the Board’s decision. Id. at 1350–51.
Williams does not control the outcome here because it
did not involve the submission of new evidence within the
one-year appeal period or the VA’s obligations under
8 BERAUD v. MCDONALD

§ 3.156(b). The government cites various authorities
supporting the proposition in Williams that a subsequent
final adjudication on an identical claim terminates the
pendency of a prior claim, but none involve the effect of
such a subsequent decision on the VA’s substantive duties
under § 3.156(b).
In Williams, we concluded that a later final determination
of which a veteran received notice could cure the
VA’s failure to provide notice of an earlier determination,
thereby allowing the earlier claim to become final. In
reaching that conclusion, we expressly noted that no
statute or regulation required a contrary conclusion. 521
F.3d at 1350. We also reasoned that, because the veteran
ultimately received the notice to which he claimed entitlement,
the veteran understood how his claim was ultimately
resolved, thereby lessening any prejudice to him.
Here, in contrast, the VA was under an express regulatory
obligation to make a determination regarding the
character of the new evidence Beraud submitted and has,
to this day, not done so. As we made clear in Bond, the
VA’s obligations under § 3.156(b) are not optional. While
the government effectively cured the notice problem in
Williams, the VA has never made the determination its
own regulations impose upon it here. We cannot, as the
government requests, simply allow the VA to skirt its
regulatory obligations by revisiting a disability determination
based, yet again, on an incomplete record. To do so
would strip § 3.156(b) of any significance.1 We decline to
extend Williams to these circumstances.
1 The fact that Beraud could have appealed the
1990 Decision does not obviate this concern. Nothing
about the 1990 Decision cured the VA’s failure to fulfill its
obligations under § 3.156 and nothing in that decision
informed Beraud that his missing service medical records
were ever considered for any purpose. Imposing such a
BERAUD v. MCDONALD 9

We also reject the government’s assertion that the
Veterans Court was correct to presume that the VA
considered all relevant evidence, including the medical
records Beraud identified in his December 1985 letter,
when it made its 1990 Decision. Though such a general
presumption applies where the record before the VA is
complete and there is no statutory or regulatory obligation
that would be thwarted by application of the presumption,
in Bond we unambiguously rejected that prepresumption
in circumstances, like here, where there is
no indication that the VA made its required determination
under § 3.156(b). 659 F.3d at 1368. We did so in
Bond in light of 38 U.S.C. § 7104(d)(1) (1996), which
requires that the Board include in any decision a “written
statement of the Board’s findings and conclusions, and
the reasons or bases for those findings and conclusions, on
all material issues of fact and law presented on the record.”
659 F.3d at 1368. To apply the presumption the
government urges 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.” Id. This is particularly true where the government
asks us to indulge a presumption that the VA considered
records it never obtained. We reaffirm that,
under § 3.156(b), the VA must provide a determination
that is directly responsive to the new submission and
that, until it does so, the claim at issue remains open.
burden on the veteran solely to excuse the VA from fulfilling
its obligations is particularly unjustified in light of
this court’s repeated acknowledgement of the “claimantfriendly
[nature] of this adjudicatory system” that has
been “established for veterans’ benefits.” Sprinkle v.
Shinseki, 733 F.3d 1180, 1189 (Fed. Cir. 2013); Bonner v.
Nicholson, 497 F.3d 1323, 1331 (Fed. Cir. 2007) (noting
the “obligatory veteran-friendly position of the law governing
veterans’ claims”).
10 BERAUD v. MCDONALD

The government asks this court to allow the VA to terminate a claim when it makes a subsequent adjudication even if it failed to fulfill its duty under § 3.156(b)—a duty the government concedes is not a substantial administrative burden on the VA. Oral Arg. at 19:42–20:20, available at http://oralarguments.cafc.uscourts. gov/default.aspx?fl=2013-7125.mp3 (“No, [the § 3.156(b) determination] would not be an extreme burden on the VA.”). In light of Bond and the unambiguous
obligations dictated by § 3.156(b), we decline to do so.

CONCLUSION
Because the VA never determined whether the medical
records Beraud referred to in his December 1985 letter
constituted new and material evidence, as required by
§ 3.156(b), his 1985 claim remains pending. We reverse
and remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED
United States Court of Appeals
for the Federal Circuit
______________________
LEONARD BERAUD,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7125
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-726, Judge Alan G. Lance, Sr.
______________________
LOURIE, Circuit Judge, dissenting.
I respectfully dissent from the panel majority’s decision
to reverse the decision of the Veterans Court, which
affirmed the decision of the Board that held that Beraud
was not entitled to an effective date prior to August 27,
2004, for service connection for migraine headaches. See
Beraud v. Shinseki, 26 Vet. App. 313 (2013). Because I
believe that the Veterans Court did not err in its interpretation
of our prior case law, I would affirm the decision of
the Veterans Court.
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We generally
lack jurisdiction to review challenges to the Board’s
factual determinations or to any application of law to fact.
2 BERAUD v. MCDONALD
See, e.g., Johnson v. Derwinski, 949 F.2d 394, 395 (Fed.
Cir. 1991). Our jurisdiction in this case is limited to
review of whether the Veterans Court properly interpreted
this court’s holdings in Williams v. Peake, 521 F.3d
1348 (Fed. Cir. 2008), and Bond v. Shinseki, 659 F.3d
1362, 1367 (Fed. Cir. 2011), in the context of 38 C.F.R.
§ 3.156(b). In my view, Williams is not undermined by
Bond, and Williams should control in this case.
In Williams, we determined that an initial claim remained
pending due to a lack of notice that the claim was
disallowed, but we held that final adjudication of an
identical second claim terminated the initial claim. 521
F.3d at 1349–50. We held that “a subsequent final adjudication
of a claim which is identical to a pending claim
that had not been finally adjudicated terminates the
pending status of the earlier claim.” Id. at 1351. We
reasoned that the “notice given that the later claim has
been disallowed informs the veteran that his claim for
service connection has failed,” and “[t]his notice affords
the veteran the opportunity for appeal to the [Board], and
if necessary to the Veterans Court and this court.” Id.
Although Williams did not concern finality in the context
of § 3.156(b), there is no reason to limit Williams to
cases involving notice errors, and our cases have not
limited Williams in such a way. See Charles v. Shinseki,
587 F.3d 1318, 1323 (Fed. Cir. 2009) (holding that in the
context of § 3.156(b), an original claim that remains
unadjudicated as a result of evidence submitted within
one year of the original claim is not rendered final as a
result of an identical later-filed abandoned claim because,
unlike in Williams, the later-filed abandoned claim has
not been adjudicated on the merits); see also Jones v.
Shinseki, 619 F.3d 1368, 1373 (Fed. Cir. 2010) (It is a
“logical extension of Williams” that “[i]f a veteran has a
claim pending in appellate status” due to the VA’s failure
to issue a statement of the case, then “a decision by the
Board denying a subsequent identical claim effectively
BERAUD v. MCDONALD 3
informs him that the earlier claim also has been disallowed
by the Board on appeal.”).
In Bond, decided three years after Williams, we held
that the VA was required to determine if a submission
filed during the appeal period under § 3.156(b) constituted
new and material evidence relating to a pending claim,
even if that submission is also treated as an increased
rating claim. 659 F.3d at 1367–68. We recognized that
“[b]ecause § 3.156(b) requires that the VA treat new and
material evidence as if it was 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.” Id. at 1367. We declined to
presume that the VA considered and rejected evidence
submitted by the veteran. Id. at 1368. But, unlike in
Williams, Bond did not include a later claim whose resolution
terminated the initial claim.
I would hold that the Veterans Court thus did not err
in concluding that, under Williams, any pending, unadjudicated
claim is terminated by a subsequent adjudication
on the merits of the same claim. The panel majority
incorrectly holds that Bond “controls the outcome of this
case.” Maj. Op. at 6–8. Bond undisputedly requires that
the VA make a determination with respect to evidence
under § 3.156(b), but nowhere does Bond either explicitly
or implicitly carve out an exception to Williams for
§ 3.156(b). Bond does not involve a second claim that
terminated an initial claim, and the final adjudication of
an identical second claim is central to the finality holding
in Williams. In Bond, we declined to presume that the
VA considered and rejected evidence submitted by the
veteran, 659 F.3d at 1368, but that presumption can be
applied in cases in which there is a subsequent final
adjudication of an identical second claim. That second
claim gives the veteran the opportunity to raise the issue
of evidence that was not previously considered.
4 BERAUD v. MCDONALD
The majority expresses the concern that affirming the
Veterans Court would allow the VA to effectively disregard
the requirement of § 3.156(b). Maj. Op. at 8. That
concern, however, is misplaced. First, as previously
noted, the veteran has the opportunity to have a second
identical claim adjudicated. Second, we have previously
held that an alleged failure, in a final decision, to address
all matters before the VA or to apply all applicable laws
does not prevent the adjudication from becoming final.
See Bingham v. Nicholson, 421 F.3d 1346, 1349 (Fed. Cir.
2005) (holding that the Board’s failure to consider presumptive
eligibility in an earlier adjudication of a claim
did not vitiate the finality of that earlier decision). Instead,
the VA’s failure to consider all aspects of a claim
“‘is properly challenged through a [clear and unmistakable
error] motion.’” Id. (quoting Andrews v. Nicholson,
421 F.3d 1278, 1281 (Fed. Cir. 2005)); see also 38 U.S.C.
§ 7111(a) (providing for revision of final decisions based
upon clear and unmistakable error).
Reversing here has the potential to reopen determinations
that were closed by final decisions that were adjudicated
on the merits. Thus, for the foregoing reasons, I
respectfully dissent from the panel majority’s decision
reversing the decision of the Veterans Court.

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