Veteranclaims’s Blog

December 31, 2014

Single Judge Application; Tatum v. Shinseki, 24 Vet.App. 139, 145 (2010); Effective Date of Award; Information in Medical Opinion vs Date of Medical Opinion

Excerpt from decision below:

“The appellant appealed the July 2011 decision to the Court and, on March 30, 2012, the Court
granted the parties’ JMR wherein they agreed that the Board failed to (1) address favorable evidence indicating social impairment prior to August 22, 2002, and (2) explain its reasons or bases for choosing February 6, 2010, the date of the VA examination, as the effective date for the award of a 100% disability rating. R. at 70-78; see R. at 75 (referring to Tatum v. Shinseki, 24 Vet.App. 139, 145 (2010) (explaining that “it is the information in a medical opinion, and not the date the medical opinion was provided, that is relevant when assigning an effective date”)).

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2588
MAURICE J. DEPUY, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Maurice J. DePuy, appeals through counsel
a May 3,
2013, Board of Veterans’ Appeals (Board) decision that denied a disability
rating in excess of 50%
for post-traumatic stress disorder (PTSD) prior to August 22, 2002, and a
disability rating in excess
of 70% for PTSD from August 22, 2002, to February 6, 2010. Record of
Proceedings (R.) at 3-36.
The Board remanded the appellant’s claims for disability compensation
benefits for malaria and an
effective date earlier than August 22, 2002, for the award of a total
disability rating based upon
individual unemployability(TDIU). Therefore, those claims are not before
the Court. See Hampton
v. Gober, 10 Vet.App. 481, 483 (1997). 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).
Single-judge disposition
is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
Both parties filed briefs, and the appellant filed a reply brief. On
August 25, 2014, the
Secretary filed a motion to strike portions of the appellant’s reply brief.
The appellant filed an
opposition to the Secretary’s motion and on September 24, 2014, the Court
ordered that the
Secretary’s motion be held in abeyance until it could be heard by the
Judge assigned to decide the
case on its merits. Upon consideration of the merits of the appeal, the
Secretary’s motion to strike

is denied; the Court will vacate the Board’s decision and remand the
matter for further proceedings
consistent with this decision.
I. FACTS
The appellant served honorably on active duty in the U.S. Army from
January 1966 to
December 1968, including combat service in Vietnam. R. at 4. He was
awarded the Bronze Star
Medal with “V” device for “heroism in connection with military operations
against a hostile force.”
R. at 2381.
In June 1999, the appellant filed an informal claim for disability
compensation for PTSD.
R. at 2330. Following a September 1999 VA compensation and pension
examination (R. at 2294-
97), in December 1999, a VA regional office (RO) granted the appellant’s
claim and assigned a 30%
disability rating, effective June 4, 1999. R. at 2288-91. The appellant
perfected an appeal of the
assigned disability rating to the Board. R. at 2228-30, 2247-59, 2272.
In a June 2001 decision, the Board favorably determined that the criteria
for a 50% disability
rating had been met, but that the record did not demonstrate entitlement
to a rating in excess of 50%.
R. at 2202-15. In a July 2001 rating decision, the RO increased from 30%
to 50% the appellant’s
PTSD evaluation effective June 4, 1999. R. at 2194-97. In rendering its
decision, the RO stated that
the June 2001 Board decision provided for a 50% evaluation and that the
effective date was to be
determined by the RO. R. at 2196. In the July 26, 2001, notice of the
decision, the RO informed the
appellant that “we found . . . [y]our [PTSD,] which was 30% has increased
to 50% disabling,” and
that if he disagreed with the decision, he should “write and tell us why.”
R. at 2194-95.
On July 24, 2002, the appellant disagreed with the rating decision,
asserting that he was
100% disabled as a result of PTSD. R. at 2139. The RO accepted the
appellant’s correspondence
as a Notice of Disagreement (NOD), issued a Statement of the Case (SOC),
and the appellant filed
a Form 9 appealing the assigned disability rating to the Board. R. at 2049,
2071-84, 2132-33.
On May27, 2004, the Board denied an “increased evaluation for [PTSD]
currentlyevaluated
as 50[%] disabling.” R. at 1967-93. On appeal, the Court granted the
parties’ joint motion for
remand (JMR), wherein they agreed that remand was warranted for the Board
to consider whether
2

staged ratings were appropriate and additional development. R. at 1957-62.
Regarding the Board’s
obligation to consider staged ratings, the JMR provided in pertinent part:
Appellant filed his claim for service connection for PTSD in June 1999 and
the
[RO] granted service connection and a 30[%] evaluation in December 1999
. . . .
Appellant appealed that determination to the Board and in June 2001, the
Board
granted a 50[%] evaluation. The RO implemented this higher evaluation in a
July
2001 rating decision. . . . Appellant filed an NOD as to that decision and
again
perfected his appeal to the Board. Thus, Appellant’s claim is not a claim
for an
increased rating, but rather an appeal of an initial evaluation.
Under such circumstances, the Board should consider the appropriateness of
staged ratings.[1]
See Fenderson v. West, 12 Vet.App. 119, 126 (1999).
R. at 1960 (emphasis added).
In a July 2005 remand order, the Board remanded the matter for additional
development,
including a VA examination. R. at 1914-25. In its remand order, the Board
also addressed the
parties’agreementthatthe Board should consider whetherstaged ratings were
appropriate, but found
that Fenderson did not apply to the appellant’s case. R. at 1916-18. The
Board explained that “[t]he
present claim for an increased evaluation for PTSD does not involve a
consideration of the
evaluation assigned after the initial grant of service connection,”
because the June 2001 Board
decision, which had granted a 50% evaluation for PTSD, became final when
the appellant did not
appeal the decision to the Court. R. at 1919.
Following additional development, in June 2006 the RO awarded a 70%
disability rating for
PTSD from August 22, 2002, a temporary 100% disability rating from July 19,
2004, and a 70%
disability rating from October 1, 2004. R. at 1227-45. The appellant,
through counsel, submitted
written argument asserting entitlement to a disability rating in excess of
50% prior to August 22,
2002. R. at 1207-10. After another Board remand and further development,
the Board issued a
decision in July 2011 that denied a rating in excess of 50% for PTSD prior
to August 22, 2002, and
At the time the parties entered into the JMR, the “staged ratings” rule
applied only to the
assignment of an initial disability rating following an initial award of
service connection for that
disability. TheCourt did not extendVA’s dutyto consider”stagedratings”to
increased-ratingclaims
until 2007. See Hart v. Mansfield, 21 Vet.App. 505, 510 (2007) (holding
that “staged ratings are
appropriate for an increased-ratingclaim when the factual findings show
distinct time periods where
the service-connected disability exhibits symptoms that would warrant
different ratings”).
3
1

a rating in excess of 70% from August 22, 2010, to February 5, 2010, but
granted a 100% schedular
disability rating for PTSD from February 6, 2010. R. at 464-87. The RO
implemented the Board’s
decision on August 8, 2011. R. at 129-34.
The appellant appealed the July 2011 decision to the Court and, on March 30, 2012, the Court
granted the parties’ JMR wherein they agreed that the Board failed to (1) address favorable evidence indicating social impairment prior to August 22, 2002, and (2) explain its reasons or bases for choosing February 6, 2010, the date of the VA examination, as the effective date for the award of a 100% disability rating. R. at 70-78; see R. at 75 (referring to Tatum v. Shinseki, 24 Vet.App. 139, 145 (2010) (explaining that “it is the information in a medical opinion, and not the date the medical opinion was provided, that is relevant when assigning an effective date”)).
In the May 2013 decision here on appeal, the Board denied a disability
rating in excess of
50% for PTSD prior to August 22, 2002, and a disability rating in excess
of 70% for PTSD from
August 22, 2002, to February 6, 2010. R. at 3-36. Prior to addressing the
merits of the appellant’s
claim, in a section entitled “Initial Matters,” the Board extensively
discussed the procedural history
of the appellant’s claim for disability compensation for PTSD and his
appeal for higher disability
ratings. R. at 11-15. In doing so, the Board found that the June 2001
decision, which granted an
increased initial 50% disability rating, had become final. R. at 12. The
Board stated that the June
2001 Board decision was “final when issued” and that the appellant did not
file an appeal to the
Court. Id. Accordingly, the Board found that it must limit consideration
of whether the appellant
was entitled to a rating in excess of 50% prior to August 22, 2002, to the
period after its June 2001
decision. R. at 14.
The Board further explained that the appellant’s July 2002 “NOD” should
not have been
accepted as an NOD with the July2001 rating decision, which merely
implemented the Board’s June
2001 decision, but rather, “should have been accepted as a new claim for
an increased rating for
PTSD.” R. at 13. The Board waived any procedural deficiencies in
perfecting the current appeal,
but stated “it cannot and does not waive the finality of its June 2001
decision.” R. at 14. Although
the Board generallymentioned the parties’February2005 JMR, the Board did
not discuss the parties’
agreement therein, that the “[a]ppellant’s claim is not a claim for an
increased rating, but rather an
appeal of an initial evaluation.” R. at 1960; see R. at 14. This appeal
followed.
4

II. ANALYSIS
A. Disability Rating for PTSD
The appellant argues, and the Secretary concedes, that the Board failed to
provide an
adequate statement of reasons or bases for its denial of a disability
rating in excess of 50% prior to
August 22, 2002, and in excess of 70% from August 22, 2002, to February 6,
2010. Appellant’s
Brief (Br.) at 25-30; Secretary’s Br. at 3-4. In particular, the
Secretaryconcedes that the Board failed
to address potentially favorable evidence for the earlier period, and
failed to explain adequatelywhy
the February 6, 2010, medical examination did not support a higher
disability rating prior to the date
of the examination. Secretary’s Br. at 3-4 (referring to Appellant’s Br.
at 26-29).
ReviewoftheBoard’s decisionandtherecordonappeal supportstheSecretary’s
concessions.
See 38 U.S.C. § 7104(d)(1); Thompson v. Gober, 14 Vet.App. 187, 188 (2000
) (Board must provide
an adequate statement of reasons or bases “for its rejection of any
material evidence favorable to the
claimant”); Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board must
include a written statement
of the reasons or bases for its findings and conclusions on all material
issues of fact and law
presented on the record adequate to enable an appellant to understand the
precise basis for the
Board’s decision, and to facilitate informed review in this Court). The
Court agrees that the Board
failed to address potentially favorable evidence and erred by failing to
ensure compliance with the
March 2012 JMR, which required the Board to explain why the February 2010
examination report
supported a 100% disabilityevaluation as of the date of the examination,
but not earlier. Appellant’s
Br. at 29-30; Secretary’s Br. at 3-4; see Stegall v. West, 11 Vet.App. 268,
271 (1998). Accordingly,
the Court will vacate the Board’s decision and remand the matters for the
Board to provide an
adequate statement of reasons or bases for its findings. The Court will
further order that a copy of
the appellant’s and the Secretary’s briefs be provided to the Board so
that the Board may address the
specific deficiencies identified by the parties.
Onremand,theappellantis freeto submit
additionalevidenceandargumentontheremanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay
v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,theBoardmust
consideradditional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board must proceed
expeditiously, in
5

accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for ”
expeditious treatment”
of claims remanded by the Court).
B. The Parties’ Dispute
The parties’ dispute centers on the Board’s determination that its June
2001 Board decision
became final and, therefore, the appellant’s appeal for a higher
disability rating prior to August 22,
2002, is limited to the period between June 2001 and August 2002.
Appellant’s Br. at 23-25;
Secretary’s Br. at 9-18; Reply Br. at 1-13. The appellant argues for
reversal. Appellant’s Br. at 23-
25. In support of that argument, the appellant contends that the dispute
regarding the finality of the
June 2001 decision was resolved in the February 2005 JMR, which was
incorporated by reference
in the Court’s February 2005 order (see R. at 1960 (JMR providing that the
“[a]ppellant’s claim is
not a claim for an increased rating, but rather an appeal of an initial
evaluation”)), and that the Board
erred as a matter of law when it disregarded the Court’s order.
Appellant’s Br. at 23-25. The
appellant also requests that the Court consider imposing sanctions against
the Secretary for
“persistent non-compliance” with the February 2005 Court order. Id. at 25.
The Secretary contends that the appellant’s arguments should be rejected
because (1) he did
not appeal the June 2001 Board decision, (2) he is barred by the doctrine
of issue preclusion from
relitigating the propriety of the 50% evaluation prior to June 2001, and (
3) the February 2005 JMR
is void and nonenforceable because agreements, which are contrary to
statute or regulation when
made, are “void ab initio and cannot be enforced.” Secretary’s Br. at 9,
11-15 (emphasis added). He
argues that “[i]t is clear” that the JMR cannot be enforced because the
appellant did not appeal the
June 2001 Board decision within the statutorily prescribed time and the
decision became final. Id.
at 15-16. He also asserts that the parties lacked authority, and the Court
lacked jurisdiction, to
circumvent the finality of the June 2001 Board decision in the JMR. Id. at
14-18.
Alternatively, the Secretary avers that the appellant waived the right to
argue or should be
precluded from arguing that the Board violated the terms of the 2005 JMR.
Id. at 19-21. He asserts
that the appellant, who has been represented byhis current counsel since
at least 2005, was on notice
as early as July 2005 that the Board deemed the June 2001 decision final,
and despite numerous
filings and arguments at the administrative level, failed to raise any
issue concerning the Board’s
6

purported noncompliance with the JMR. Id. Finally, the Secretary contends
that the appellant’s
request for sanctions is misplaced and unfounded. Id. at 18-19.
In his reply brief, the appellant argues that the Secretary is not free to
ignore the Court’s
mandate and that the Secretary’s remedy had he disagreed with the Court’s
order was to file a motion
to recall mandate. Id. at 2-3, 5. Having failed to do so, the appellant
argues, the Secretary is
precluded from relitigating this issue nine years later. Id. at 7-8. The
appellant continues to assert
that sanctions are warranted because the Board refused to comply with the
Court’s order, and the
Office of General Counsel defends the Board’s noncompliance. Reply Br. at
13-15.
In response to the Secretary’s waiver argument, the appellant notes that
the 2005 Board
remand order was not a final decision appealable to the Court. Id. at 9.
Moreover, because VA
consistently framed the issue on appeal as entitlement to a rating in
excess of 50% “for the period
prior to August 22, 2002,” the appellant contends that it was unclear
whether VA considered the
period from June 1999. Id. at 10.
Finally, regarding the legality of the 2005 JMR, the appellant asserts
that the JMR is not an
illegal agreement because finalitydid not attach to the June 2001 Board
decision. Reply Br. at 2, 11.
He contends that the June 2001 Board decision is not final because the
Board did not provide him
with notice of the decision and his rights to appeal the decision. Reply
Br. at 2, 11-12. Regardless,
the appellant asserts that the merits of the Secretary’s finality argument
are not before the Court
because the law of the case precludes relitigation of this issue. Id.
C. The Mandate Rule and Law of the Case Doctrine
The “Mandate Rule” provides that “a lower court is generally bound by the
terms of the
mandate and has no power or authorityto deviate from that mandate.” Chisem
v. Brown, 8 Vet.App.
374, 375 (1995). “For purposes of this analysis, this Court’s position is
analogous to that of a ‘circuit
court,’ while the B[oard] stands somewhat in the position of a district
court.” Id. The Mandate Rule
applies with equal force to the provisions of a JMR that is incorporated
by reference into the Court’s
mandate. Harris v. Brown, 7 Vet.App. 547, 548 (1995); see Stegall, 11 Vet.
App. at 271 (holding
that a remand by this Court “confers on the veteran . . . , as a matter of
law, the right to compliance
with the remand order[],” and the Board itself errs when it fails to
ensure compliance with the terms
of such a remand); see also Forcier v. Nicholson, 19 Vet.App. 414, 425 (
2006) (Secretary’s duty
7

under Stegall to ensure compliance with the terms of a JMR applies even
if the terms of the
agreement are not explicitlyincorporated byreference into the Court’s
remand order). If VA has any
doubts as to the requirements of the mandate, the Secretary should file a
motion for clarification.
Harris, 7 Vet.App. at 548 (the lower court “‘is without power to do
anything which is contrary to
either the letter or spirit of the mandate'” (quoting City of Cleveland,
Ohio v. Fed. Power Comm’n,
561 F.2d 344, 346 (D.C. Cir. 1977))); see also Chisem, 8 Vet.App. at 375 (”
Where there is doubt as
to the correctness of the law of the case as established on appeal,
usually any such arguments should
be addressed to the appellate court in a petition for rehearing or by
motion for recall of the mandate
or on appeal from the lower court after remand.” (citing Ulmet v. United
States, 17 Cl. Ct. 679, 690
(1989), aff’d, 935 F.2d 280 (Fed. Cir. 1991))).
A corollary principle is the law of the case doctrine. Under that doctrine
, “[w]here a case is
addressed by an appellate court, remanded, then returned to the appellate
court, the ‘law of the case’
doctrine operates to preclude reconsideration of identical issues.”
Johnson v. Brown, 7 Vet.App. 25,
26 (1994) (citation omitted); see also Suel v. Sec’y of Health & Human
Servs., 192 F.3d 981, 985
(Fed. Cir. 1999). “The doctrine operates to protect the settled
expectations of the parties and
promote orderly development of the case,” Suel, 192 F.3d at 984 (citing
Mendenhall v. Barber-
Greene Co., 26 F.3d 1573, 1582 (Fed. Cir. 1994)), and applies to decisions
of this Court on cases
remanded to the Board, Browder v. Brown, 5 Vet.App. 268 (1993). The Court
will refuse to apply
the doctrine when one of three exceptional circumstances exist: (1) The
evidence in a subsequent
trial was substantially different; (2) controlling authority has since
made a contrary decision of law;
or (3) the earlier ruling was clearly erroneous and would work a
substantial injustice. Gould v.
United States, 67 F.3d 925, 930 (Fed. Cir. 1995); Kori Corp. v. Wilco
Marsh Buggies & Draglines,
Inc., 761 F.2d 649, 657 (Fed. Cir. 1985); see also Chisem v. Brown, 10 Vet.
App. 526, 528 (1995).
D. Application of Law
Here, it appears that the Board implicitly undertook to reform the mandate
this Court issued
in light of the parties’ agreement in the February 2005 JMR. A plain
reading of the February 2005
JMR reveals that the Secretaryagreed that theappellant’s disagreementwith
thedisabilityevaluation
assigned to his service-connected PTSD was an appeal of an initial
evaluation, and not a claim for
an increased disability evaluation. The JMR delineated the procedural
history of the appellant’s
8

initial claim, noting the June 2001 Board decision, the July 2001 RO
decision, and his appeal from
that decision. Implicit in the parties’ agreement that the appellant’s
claim is “an appeal of an initial
evaluation” is an agreement that the June 2001 Board decision was not
final. Nonetheless, the Board
made an inconsistent finding in the decision on appeal – finding the
June 2001 decision final –
without any acknowledgment of the parties’ agreement in the February 2005
JMR incorporated in
the Court’s mandate. This was error. Accord Harris, 7 Vet.App. at 548 (
vacating the Board’s
decision, which ignored the terms of the JMR approved by the Court, and
remanding for
readjudication consistent with the Court’s prior remand order).
Pursuant to the Court’s holding in Harris, the Secretary’s remedy, had he
had any doubts as
to the correctness of the Court’s mandate, was to file a motion for
clarification or to recall mandate.
See id.; see generally McNaron v. Brown, 10 Vet.App. 61, 63 (1997) (“Under
the strict standards
governing the exercise of power to recall a mandate, the mere questioning
of a court’s reasoning,
construction, or application of the relevant law is insufficient by itself
to justify the recall of a
mandate.”). The Secretary did not avail himself of this remedy.2
Instead, the Secretaryargues in defense of the Board’s May 2013 decision
that the June 2001
decision became final when the appellant did not appeal the decision to
this Court and, therefore, the
appellant is not entitled to enforcement of the terms of the 2005 JMR. As
an initial matter, the Court
is not persuaded by the Secretary’s argument that the Court lacked
jurisdiction in 2005 to find that
the appellant’s appeal was “an appeal of an initial evaluation.” When the
appellant filed a Notice of
Appeal from the March 2004 Board decision, the Court had jurisdiction to
review the Board’s denial
of an “increased evaluation for [PTSD] currently evaluated as 50[%]
disabling.” R. at 1967-93. See
Tyrues v. Shinseki, 23 Vet.App. 166, 178 (2009) (“[T]his Court’s
jurisdiction is controlled by
whether the Board issued a ‘final decision’ – i.e., denied relief by
either denying a claim or a specific
Even assuming that the Secretary sought to recall mandate, the Court
observes that the
reasons proffered by him in these proceedings do not fall within the
recognized “exceptional
circumstances”to justifytheCourt’sexerciseofpowerto recallmandate.
SeeMcNaron,10Vet.App.
at 63 (holding that the power to recall mandate should only be exercised
in “exceptional
circumstances,” such as the discovery that the judgment was obtained by
fraud, the correction of
clerical mistakes and judicial oversights, a subsequent change in the law,
or where it is discovered
that the appellant had died prior to the issuance of the mandate).
9
2

theory in support of a claim and provided the claimant with notice of
appellate rights.”), aff’d,
631 F.3d 1380, 1383 (Fed. Cir. 2011), vacated and remanded for
reconsideration, 132 S. Ct. 75
(2011), modified, 26 Vet.App. 31 (2012). As part of that review, the Court
had the authority to
“decide all relevant questions of law” that arose with regard to the
denied claim, including whether
the appellant’s appeal arose from a claim for an increased disability
rating or the assignment of an
initial evaluation. See 38 U.S.C. §§ 7252 (Court has “exclusive
jurisdiction to review decisions of
the Board”), 7261(a)(1) (providing authority for the Court to “decide all
relevant questions of law”
pertaining to a claim); DiCarlo v. Nicholson, 20 Vet.App. 52, 57 (2006) (
holding that the finality of
a specific claim is an issue that can be raised when relevant, but is not
a procedure or claim in and
of itself); see also Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (
Court has jurisdiction to
hear or remand legal arguments presented to it in the first instance,
provided it otherwise had
jurisdiction over the claim).
The primary reason proffered by the Secretary to justify the Board’s
implicit rejection of the
terms of the 2005 JMR is that the JMR was void ab initio because the June
2001 Board decision,
which granted the initial 50% disability evaluation, became final when the
appellant failed to appeal
that decision to this Court. Secretary’s Br. at 14-18. The flaw in the
Secretary’s argument is that the
law of the case implicitly determined that the June 2001 decision was not
final and he has not
demonstrated that an exceptional circumstance exists. See DiCarlo, 20 Vet.
App. at 55 (holding that
the 2002 Board erred when it directly addressed the finality of a 1973 RO
decision, which was
previously adjudicated in a 1983 Board decision, because there can be only
one valid determination
on the issue of the finality of the 1973 decision).
Application of the law of the case does not require the Court to find that
the Court’s 2005
mandate was correct. Rather, to circumvent the law of the case, the Court
must find that an
exceptional circumstance exists. See Gould, 67 F.3d at 930; Kori Corp.,
761 F.2d at 657; Chisem,
10 Vet.App. at 528. The only exception implicated by the parties’
arguments is whether the earlier
ruling was clearly erroneous and would work a substantial injustice.
The Secretary stresses that the undisputed facts establish that the June
2001 Board decision
(1) granted a 50% initial disability evaluation and denied a higher
initial disability evaluation; (2)
was a final decision of the Board; (3) did not award a full grant of
benefits; (4) included a notice of
10

appellate rights; (5) was appealable to the Court; and (6) was not
appealed. Secretary’s Br. at 11.
In defense of the law of the case, and in response to the Secretary’s
contention that the parties entered
into an unlawful agreement that was sanctioned by the Court through ”
inattention,” the appellant
states that the June 2001 decision did not become final because he did not
receive notice of the
Board decision. Reply Br. at 11-13. Although it is unnecessary for the
Court to decide this issue,
the Court observes that the record does not include any indicia that the
Board mailed notice of its
decision to the appellant at his last known address. 38 U.S.C. § 7104(e)(
1). Based on the parties’
arguments, the Board’s decision, and the current record, the Court cannot
conclude that the earlier
ruling was clearly erroneous and would work a substantial injustice.
Additionally, the Court is not persuaded by the Secretary’s contention
that the appellant
waived any argument that the Board failed to comply with the terms of the
JMR because he did not
raise the issue after the July 2005 remand order. The Board’s July 2005
order was not a final Board
decision appealable to the Court. See Forcier, 19 Vet.App. at 425-26 (
noting that “a claimant
seeking to appeal before this Court the Secretary or the Board’s failure
to fulfill their Stegall duties
must, however, first obtain a final Boarddecisionrenderedpursuantto
theCourt’sgrant of the [JMR]
at issue”); see also 38 U.S.C. §§ 7266(a), 7252(a). Moreover, VA’s
framing of the issue as
entitlement to a disability rating in excess of 50% “prior to August 22,
2002,” and its discussion of
the evidence since September 1999 did not provide a clear indication that
VA was limiting its
consideration to the period after June 2001.
Based on the foregoing, the Court concludes that the law of the case
applies, and that the
Board erred when it relitigated the finalityof the June 2001 Board
decision and sua sponte undertook
to reform the Court’s mandate. See Harris, 7 Vet.App. at 548. The Board’s
finding that the June
2001 decision is final is reversed. On remand, the Board must consider the
period from June 1999
through August 2002 when it readjudicates whether the appellant is
entitled to a disability rating in
excess of 50% prior to August 22, 2002.
E. Sanctions
Like other Federal courts, “this Court possesses the inherent as well as
the statutoryauthority
to impose sanctions.” Pousson v. Shinseki, 22 Vet.App. 432, 436 (2009);
see Perry v. West,
11 Vet.App. 319, 322 (1998) (stating that a “‘finding that the conduct at
issue constituted or was
11

tantamount to bad faith is a precondition to imposing sanctions under the
Court’s inherent power'”
(quotingEbertv. Brown, 4 Vet.App.434,437(1993))).Pursuantto statute,
sanctionsarepermissible
when there is (1) “misbehavior” before the Court “or so near thereto as to
obstruct the administration
of justice,” or (2) “misbehavior of any of its officers in their official
transactions,” or (3)
“disobedience or resistance to its lawful writ, process, order, rule,
decree, or command.” 38 U.S.C.
§ 7265; see Jones v. Derwinski, 1 Vet.App. 596, 607 (1991) (stating that
before imposing sanctions,
the Court must “take care to determine that the conduct at issue actually
abused the judicial
process”). The appellant’scontentionthattheSecretaryshould
besanctionedforhis “consistent non-
compliance” with the 2005 Court order is contradicted by his contention
that the Secretary’s actions
following the July 2005 remand did not clearly limit the period under
consideration to the period
after June 2001. Although the Board erred in the decision on appeal, the
Court is not convinced that
VA’s conduct was tantamount to bad faith or abused the judicial process.
Accordingly, the
appellant’s request for sanctions is denied.
F. The Secretary’s Motion To Strike
The Secretaryseeks to strike the portions of the appellant’s replybrief
that (1) assert the June
2001 Board decision is not final because the appellant did not receive
notice of the decision, and (2)
seek sanctions. Secretary’s Motion To Strike at 1-9. Regarding the first
issue, the Secretary asserts
the appellant improperly raises this argument for the first time in his
reply brief. Id. at 2-6. The
Court disagrees. The appellant’s assertions are not a new argument, but
merely his response to the
Secretary’s argument that the parties entered into an illegal JMR in
February 2005. The appellant
does not seek a decision from the Court that the June 2001 decision is not
final because he did not
receive notice of the decision. See Reply Br. at 11-13; see also
Opposition to Motion To Strike at
5 (asserting that nonfinality of the 2001 Board decision is not an issue
in this appeal, because it was
“conclusivelyresolved in theveteran’s favorbythe2005JMR and[o]rder,”
andtherefore,theparties’
discussion is “irrelevant to any merits issue now before the Court”). But
rather, the appellant’s
arguments are proffered to rebut the Secretary’s suggestion that the
record undebatably establishes
that the 2005 mandate was clearly erroneous and in response to his
allegations that the parties
entered into an illegal agreement, which was sanctioned by the Court
through inattention.
Accordingly, the Secretary’s motion to strike that portion of the
appellant’s reply brief is denied. In
12

addition, because the Court declines to exercise its discretion to issue
sanctions, the Secretary’s
motion to strike those portions of the reply brief addressing sanctions is
denied as moot.
III. CONCLUSION
Based upon the appellant’s assertions, the Secretary’s concessions, and a
review of the record
on appeal, the Board’s determination that the June 2001 Board decision is
final is REVERSED; and
the Board’s May 3, 2013, decision denying a disability rating in excess of
50% for PTSD prior to
August 22, 2002, and a disability rating in excess of 70% for PTSD from
August 22, 2002, to
February6,2010,is VACATEDandthemattersareREMANDEDforfurtherproceedings
consistent
with this decision. The Court will further ORDER that a copy of the
appellant’s brief and the
Secretary’s brief be provided to the Board so that the Board may address
the specific deficiencies
identified by the parties. The Secretary’s motion to strike portions of
the appellant’s reply brief is
denied.
DATED: October 30, 2014
Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)
13

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: