Veteranclaims’s Blog

January 2, 2015

Single Judge Application; Beraud v. McDonald 766 F.3d 1402, 1406 (2014); 38 C.F.R. § 3.156(b)

Excerpt from decision below:

“Notably, the Federal Circuit’s recent decision in Beraud v. McDonald declined to extend Williams to circumstances that involved new evidence submitted in connection with an appeal of a claim to reopen because of VA’s “express regulatory obligation [under 38 C.F.R. § 3.156(b)] to make a determination regarding the character of the new evidence Beraud submitted” within the one-year appeal period. 766 F.3d 1402, 1406 (2014). Unfortunately for Mr. Putnam, § 3.156(b) does not apply to his case and, therefore, Williams and not Beraud dictates the outcome here.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-3505
ROBERT L. PUTNAM, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge:
The appellant, Robert L. Putnam, appeals through counsel a
November 19, 2013, Board of Veterans’ Appeals (Board) decision that denied
entitlement to an
effective date prior to May4, 2010, for service-connected bilateral
hearing loss. Record (R.) at 3-17.
Both parties have filed briefs. The Court has jurisdiction pursuant to 38
U.S.C. § 7252(a) to review
the November 2013 Board decision. A single judge may conduct that review.
See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will affirm the
November 2013 Board decision.
I. FACTS
Mr. Putnam served honorably on active duty in the U.S. Army from June 1945
to December
1946, and from February 1953 to January 1956. R. at 918-20, 922-25. In
1947, the appellant filed
his first disability claim for service-incurred hearing loss (R. at 776-79
), which a VA regional office
(RO) denied because loss of hearing was “not shown by the evidence of the
record.” R. at 772-73.
The Board issued a decision on March 24, 1977, that, inter alia, denied
service connection for
defective hearing. R. at 534-40. Mr. Putnam sought to reopen his hearing
loss claim in 1987. R.
at 510, 512-14. After receiving correspondence from VA informing him that
his claim had been

previously denied and instructing him how to reopen a claim (R. at 509),
Mr. Putnam submitted
further information in support of his claim (R. at 501-06), but was
ultimately denied by an RO-
confirmed rating decision in November 1987 (R. at 488-90).
In December 1994, the appellant once again sought service connection for
hearing loss,
attaching to his claim the results of a recent private audiogram dated
December 6, 1994. R. at 484-
86. On December 30, 1994, the RO sent Mr. Putnam a letter again informing
him that his claim had
been previously denied and instructing him how to reopen a claim. R. at
483. In January 1995, the
appellant submitted a VA Form 9, repeating the assertions from his
December 1994 informal claim.
R. at 481-82. The appellant also sent a statement in support of his claim
to VA in February 1995,
including a VA audiological examination report dated February 7, 1995. R.
at 474-79. VA
responded to this correspondence in a letter dated March 10, 1995, which
informed Mr. Putnam that
the VA “cannot accept [Form 9] as an appeal because no decision has been
made on the issue of
service connection for defective hearing within the last year.” R. at 480.
The letter once again
informed Mr. Putnam that new and material evidence was required to reopen
a claim. Id. On March
20, 1995, the RO issued a rating decision that denied the Mr. Putnam’s
claim to reopen his claim for
service connection for bilateral hearing loss, identifying VA treatment
records from January 13,
1991, to February 7, 1995, and finding that the evidence submitted was ”
not considered material
because it contains no finding regarding hearing loss in service or within
one year of discharge from
service.” R. at 471-73. The RO decision also contained boilerplate
information and enclosures on
how to file an appeal. R. at 471 (referencing VA Form 4107).
In September 1996, Mr. Putnam once again submitted a claim seeking
serviceconnection for
hearing loss. R. at 448. The RO issued a rating decision on December 4,
1996, noting the
submission of a doctor’s statement dated July 1987, and denying the
appellant’s claim to reopen his
prior claim based upon a lack of new and material evidence, again
informing Mr. Putnam of his
appellate rights. R. at 441-45.
In May 2010, the appellant once again submitted a claim to reopen his
claim for service
connection for bilateral hearing loss. R. at 387-89. In August 2010, the
RO granted the appellant’s
claim for service connection for bilateral hearing loss, effective May 4,
2010. R. at 338-46. Mr.
Putnam submitted a timely Notice of Disagreement (NOD). R. at 287-89. The
RO issued a
2

Statement of the Case in August 2010 (R. at 94-119), and the appellant
then perfected his appeal to
the Board (R. at 76-77).
On November 19, 2013, the Board issued the decision here on appeal. R. at
3-17. The
Board, among other things, found that the VA Form 9 submitted in January
1995 was “not a timely
[N]otice of [D]isagreement because the most recent prior rating decision
was issued in November
1987, and the December 1994 communication to which the Veteran’s January
1995 statement
responds is a development letter that did not adjudicate any issue and did
not provide appellate
rights.” R. at 5. Accordingly, the Board denied entitlement to an
effective date prior to May4, 2010.
R. at 14-15.
In his brief, the appellant asserts that the submission of VA Form 9 in
January 1995
amounted to a timely NOD to the previously denied December 1994 claim.
Appellant’s Brief (Br.)
at 6-8. The appellant further argues that the subsequent RO decisions
issued in March 1995 and
December 1996 that formally adjudicated the claim (and were not appealed)
did not “cure” VA’s
failure to place his claim in the appellate process. Appellant’s Br. at 8-
9. The appellant therefore
asks the Court to reverse the Board decision on appeal, affording Mr.
Putnam entitlement to an
effective date prior to May 4, 2010. Id. at 10-11. In his brief, the
Secretary asks the Court to affirm
the Board decision, arguing that the Board did not err in determining the
May4, 2010, effective date
because the December 1994 VA letter did not constitute an adjudicative
determination and,
therefore, the appellant’s 1995 VA Form 9 was not a valid NOD. Secretary’s
Br. at 9-12.
II. ANALYSIS
The effective date of an award “shall be fixed in accordance with the
facts found, but shall
not be earlier than the date of receipt of application therefor.” 38 U.S.C.
§ 5110(a). The effective
date of an award based on a claimant’s request to reopen a final decision
on the basis of new and
material evidence is generallythe date that the application to reopen was
filed. 38 U.S.C. § 5110(a);
Sears v. Principi, 349 F.3d 1326, 1330-31 (Fed. Cir. 2003). Generally, an
RO’s initial determination
will become final unless the claimant appeals that determination to the
Board. Cook v. Principi,
318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc).
3

A “pending claim” is “[a]n application, formal or informal, which has not
been finally
adjudicated.” 38 C.F.R. § 3.160(C) (2014). Consistent with this
regulation, this Court has held that
a claim remains pending if the Secretary fails to act on a claim. See, e.g
., Norris v. West,
12 Vet.App. 413, 422 (1999) (concluding that a claim reasonably raised in
1987 and 1989 remained
pending at the RO). Similarly, a decision may be rendered nonfinal when ”
the time for appealing
either an RO or a Board decision did not run where the [Secretary] failed
to provide the veteran with
information or material critical to the appellate process.” Cook, 318 F.3d
at 1340 (citing Hauck v.
Brown, 6 Vet.App. 518 (1994) (holding that the failure to provide notice
of the denial of a claim in
accordance with the statute tolled the one-year period to file an NOD)).
In Thurber v. Brown, the Court noted that “VA’s nonadversarial claims
system is predicated
upon a structure which provides for notice and an opportunity to be heard
at virtually every step in
the process.” 5 Vet.App. 119, 123 (1993); see 38 U.S.C. §§ 5104(a) (
requiring the Secretary, when
making a decision affecting the provision of benefits to a claimant, to ”
provide to the claimant . . .
notice of such decision”), 5104(b) (requiring the Secretary, when denying
a benefit sought, to
provide a statement of the reasons for the decision and a summary of the
evidence considered);
38 C.F.R. § 3.103(b) (2014) (“Claimants and their representatives are
entitled to notice of any
decision made by VA affecting the payment of benefits or the granting of
relief.”).
TheCourt held in Ingram that “areasonablyraised claim remains pendinguntil
thereis either
a recognition of the substance of the claim in an RO decision from which a
claimant could deduce
that the claim was adjudicated or an explicit adjudication of a subsequent
‘claim’ for the same
disability.” Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007); see Myers v.
Principi, 16 Vet.App.
228, 236 (2002) (finding that a claim for service connection remained
pending after the RO did not
respond to the appellant’s NOD, notwithstanding three subsequent claims by
the appellant to
“reopen” the previously denied claim); 38 C.F.R. § 3.160(C).
The Federal Circuit in Williams v. Peake relied on Ingram for the
proposition that “the
pending status of a claim is extinguished when a later claim for the same
disability is finally
adjudicated” in an RO decision. 521 F.3d 1348, 1351 (2008). “When notice
is given of the final
adjudication of the later claim, the veteran’s right to appeal the
disallowance exists.” Id.
4

Here, Mr. Putnam’s December 1994 claim did not remain pending at the time
of the Board’s
2013 decision because there had been “an explicit adjudication of the
claim” in the March 1995 RO
decision and “an explicit adjudication of a subsequent ‘claim’ for the
same disability” in the
December 1996 RO decision. See Ingram, 21 Vet.App. at 243; Williams, 521 F.
3d at 1351. Mr.
Putnam was informed in the December 1994 VA letter that his claim had been
previously denied,
as to the evidence necessaryto successfully reopen his claim, and that “[n]
o action” was being taken
on his claim. R. at 483. Indeed, the language in the December 1994 letter
was nearly identical to
that in the July 1987 VA letter. R. at 509. Each of these letters was
followed by an RO decision
(that conspicuously declared themselves as such) that denied the claim and
further informed Mr.
Putnam of his appellate rights. R. at 473, 488-89. The December 1996
decision likewise provided
Mr. Putnam notice of his appellate rights. R. at 445. Nevertheless, Mr.
Putnam did not submit an
NOD following any of these RO decisions.
In Williams, and Jones v. Shinseki, 619 F.3d 1368 (Fed. Cir. 2010),
veterans sought earlier
effective dates based on prior attempts to reopen claims that the
appellants asserted had remained
pending. In both cases, the U.S. Court of Appeals for the Federal Circuit (
Federal Circuit) held that
a finalsubsequentadjudicationbyanRO orBoarddecision,respectively,rendered
the prior attempts
to reopen closed, thus precluding earlier effective dates. The Federal
Circuit held in Williams that
final adjudication of a claim “requires allowance or disallowance by the
agency of original
jurisdiction coupled with notice to the veteran of the agency’s decision,
with finality of the
adjudication occurring one year after the date of the notice of allowance
or disallowance.” 521 F.3d
at 1350.
Because the March 1995 RO decision denied the claim to reopen and provided
Mr. Putnam
with notice of his appellate rights, it extinguished the pending status of
the December 1994 claim.
The relevant question here is whether Mr. Putnam’s January 1995 Form 9
submission was a proper
NOD that then would have required an SOC and rendered the holding in
Williams inapplicable. The
Federal Circuit noted in Jones that a later RO decision cannot resolve an
original claim that had been
placed in appellate status by virtue of a valid NOD, and only “an
appellate adjudication of a
subsequent claim for the same or similar disability could resolve the
earlier claim.” 619 F.3d at
5

1371. Under appropriate circumstances a VA Form 9 can constitute a valid
NOD. Fenderson v.
West, 12 Vet.App. 119, 128 (1999); see Archbold v. Brown, 9 Vet.App. 124,
131 (1996).
Pursuant to 38 U.S.C. § 7105(a), the filing of an NOD initiates VA
appellate review, and the
request for appellate review is completed by the claimant’s filing of a
Substantive Appeal. An NOD
is “[a] written communication from a claimant . . . expressing
dissatisfaction or disagreement with
an adjudicative determination by the agency of original jurisdiction and a
desire to contest the
result.” 38 C.F.R. § 20.201 (2014) (emphasis added). “Whether a document
is an NOD is a question
of law for the Court to determine de novo under 38 U.S.C. § 7261(a)(1).”
Beyrle v. Brown,
9 Vet.App. 24, 28 (1996). Under 38 U.S.C. § 7105(d)(1), when a claimant
files an NOD within one
year of an RO decision, VA “will take such development or review action as
it deems proper,” and
if such development does not resolve the disagreement, VA “shall prepare [
an SOC].” The RO’s
failure to furnish an SOC upon the proper filing of an NOD prevents the
underlying RO decision
from becoming final. Tablazon v. Brown, 8 Vet.App. 359, 361 (1995).
Moreover, “once an NOD
has been filed, further RO decisions, which do not grant the benefit
sought, cannot resolve the
appeal.” Juarez v. Peake, 21 Vet.App. 537, 543 (2008).
In Ingram, the Court concluded that “the time limitations pertaining to a
veteran’s right to
appeal an adverse decision do not begin to run until the veteran has
received proper notice that his
claim was denied.” 21 Vet.App. at 241; see 38 C.F.R. § 20.201.
Furthermore, “where an RO
decision discusses a claim in terms sufficient to put the claimant on
notice that it was being
considered and rejected, then it constitutes a denial of that claim even
if the formal adjudicative
language does not ‘specifically’ deny that claim.” Ingram, 21 Vet.App. at
255.
The key question is whether sufficient notice has been provided so that a
veteran
would know, or reasonably can be expected to understand, that he will not
be
awarded benefits for the disability asserted in his pending claim, and
thus can decide
for himself whether to accept the decision or seek redress elsewhere.
Jones, 619 F.3d at 1373.
Here, the December 1994 VA letter did not constitute an RO adjudication on
Mr. Putnam’s
claim to reopen. It did not provide notice that a VA adjudication had
taken place nor did it provide
notice of appellate rights. This is in contrast to the many RO decisions
that both clearly provided
Mr. Putnam notice that VA had rejected his claim to reopen and notice of
his appellate rights,
6

including RO decisions in November 1987 (R. at 488), March 1995 (R. at
471-73), and November
1996 (R. at 441-45). Notably, Mr. Putnam did not submit NODs after any of
these RO decisions
were sent to him, and he did not contact VA about his claim to reopen
until the ultimately successful
May 2010 claim.
The Court therefore holds that the Board did not err in finding that Mr.
Putnam’s January
1995 VA Form 9 submission was “not a timely notice of disagreement because
the most recent prior
rating decision was issued in November 1987, and the December 1994
communication to which the
Veteran’s January 1995 statement responds is a development letter that did
not adjudicate any issue
and did not provide appellate rights.” R. at 5. Because the December 1994
claim was not placed in
appellate status, the March 1995 RO decision that adjudicated the
February1995 claim for the same
disability extinguished the December 1994 claim. Therefore, the
appellant’s failure to appeal the March 1995 RO decision blocked this avenue for an earlier effective date.
Notably, the Federal Circuit’s recent decision in Beraud v. McDonald declined to extend Williams to circumstances that involved new evidence submitted in connection with an appeal of a claim to reopen because of VA’s “express regulatory obligation [under 38 C.F.R. § 3.156(b)] to make a determination regarding the character of the new evidence Beraud submitted” within the one-yearappeal period. 766 F.3d 1402, 1406 (2014). Unfortunately for Mr. Putnam, § 3.156(b) does not apply to his case and, therefore, Williams and not Beraud dictates the outcome here.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s November 19, 2013, decision is AFFIRMED.
DATED: November 14, 2014
Copies to:
Robert W. Legg, Esq.
General Counsel (027)
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