Veteranclaims’s Blog

July 21, 2015

Carter v. McDonald, No. 2014-7122(Decided: July 21, 2015); Notice Defect/Error; harmless error;

Excerpt from decision below:

“After the Board of Veterans’ Appeals denied the reopened claim on the merits, Mr. Carter appealed to the Court of Appeals for Veterans Claims, which, by the
parties’ agreement, remanded to the Board to give Mr. Carter the opportunity to submit additional evidence.
But the Board then failed to give proper notice of the Board-set deadline for filing such evidence, and Mr. Carter missed the deadline. When the Board denied Mr. Carter’s claim, without having received new evidence from Mr. Carter, the Veterans Court affirmed. We conclude that the Veterans Court had an incorrect understanding
of the law governing the notice defect in this case, and we vacate the Veterans Court’s decision and remand for Mr. Carter to have the opportunity to submit his new evidence.”

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

“In these circumstances, we conclude that the Veterans Court legally erred in finding a cure of the notice defect. That conclusion requires a vacatur and remand unless we find the error to be harmless. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 556 U.S. 396, 406 (2009). We cannot.
CARTER v. MCDONALD 11
The Veterans Court made no determination that, if Mr. Carter’s counsel had received the notice in a timely fashion, she would have submitted no evidence. The government has not sufficiently made such an argument on appeal, at most making a passing assertion inadequate to preserve the point. And in any event, we have no basis for finding harmlessness of the notice error.

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

United States Court of Appeals for the Federal Circuit
______________________
HARMON CARTER, JR.,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7122
______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 12-218, Chief Judge Bruce E. Kasold, Judge Lawrence B. Hagel, Judge William A. Moorman.
______________________
Decided: July 21, 2015
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.
MARTIN F. HOCKEY, JR., Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee.
Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.; DAVID J. BARRANS, MARTIE ADELMAN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
CARTER 2 v. MCDONALD
JOHN TAYLOR HEBDEN, Sidley Austin LLP, Washington, DC, for amicus curiae The National Veterans Legal Services Program. Also represented by EUGENE R. ELROD.
_____________________
Before REYNA, PLAGER, and TARANTO, Circuit Judges.

TARANTO, Circuit Judge.
Harmon Carter applied to the Department of Veterans Affairs to reopen an earlier claim for veterans’ benefits. After the Board of Veterans’ Appeals denied the reopened claim on the merits, Mr. Carter appealed to the Court of Appeals for Veterans Claims, which, by the parties’ agreement, remanded to the Board to give Mr. Carter the opportunity to submit additional evidence.
But the Board then failed to give proper notice of the Board-set deadline for filing such evidence, and Mr. Carter missed the deadline. When the Board denied Mr. Carter’s claim, without having received new evidence from Mr. Carter, the Veterans Court affirmed. We conclude that the Veterans Court had an incorrect understanding of the law governing the notice defect in this case, and we vacate the Veterans Court’s decision and remand for Mr. Carter to have the opportunity to submit his new evidence.

BACKGROUND
Mr. Carter served in the U.S. Army from 1965 to 1967. In 1989, Mr. Carter filed a claim for disability benefits for an injury to his lower back, which the Department of Veterans Affairs (VA) denied in 1990. He sought to reopen the claim in 2005 by filing new evidence that he had aggravated the injury in the course of his military service. In 2006, the VA reopened Mr. Carter’s claim but denied it on the merits, and the Board affirmed
in September 2009. While Mr. Carter’s appeal to the Veterans Court was pending, Mr. Carter changed counsel.
CARTER v. MCDONALD 3

He filed VA Form 21-22a in March 2010, naming a new,
private attorney as his representative in place of the
Disabled American Veterans. Around the same time, the
new counsel also requested a copy of Mr. Carter’s complete
claim file.
In June 2010, the new counsel and the government
negotiated and filed a joint motion in the Veterans Court
requesting partial vacatur of the September 2009 Board
decision and an order remanding the case for the Board to
address several errors in its decision. J.A. 64–69. In the
motion, the parties agreed that, “[o]n remand, [Mr.
Carter] should be free to submit additional evidence and
argument regarding his claim.” J.A. 68 (citing Kutscherousky
v. West, 12 Vet. App. 369, 372 (1999) (per curiam),
and Kay v. Principi, 16 Vet. App. 529, 534 (2002)). The
Veterans Court granted the motion on July 6, 2010,
remanding the case in accordance with the “instructions
in the joint motion,” which the court “incorporated . . . by
reference.” J.A. 70. The court sent the decision to both
parties.
The Board took over the matter a month later. It prepared
a letter (the “90-day letter”), dated August 6, 2010,
designed to notify Mr. Carter that his “case ha[d] been
received by the Board following issuance of the [Veterans]
Court’s remand decision,” and that proceedings before the
Board were ready to begin. J.A. 71. The letter stated
that, if Mr. Carter chose “to submit any additional argument
or evidence, it must be submitted . . . within 90
days of the date of this letter.” Id. (italics added, bold in
original); see J.A. 71. The Board sent the letter to Mr.
Carter and his former representative, the Disabled American
Veterans, but not to his new counsel. J.A. 73. It is
undisputed that Mr. Carter’s counsel never received the
letter within the 90-day period, which ended on November
4, 2010.
CARTER 4 v. MCDONALD
On December 13, 2010, the VA sent the new counsel a
copy of Mr. Carter’s claim file, nearly nine months after
she requested it. J.A. 3–4. Although she had filed the
request before the remand order issued, a copy of the 90-
day letter had been added to Mr. Carter’s claim file before
it was copied and sent to her. She admittedly did not read
the file upon receipt, and thus did not see the letter. J.A.
14–15.
In February 2011, without hearing from Mr. Carter or
his attorney, the Board acted on the remanded case, again
denying his claim for benefits. J.A. 75–87. Like the 90-
day letter, the Board decision did not immediately reach
Mr. Carter’s attorney. She did not receive a copy of the
February 2011 Board decision until December 2011, at
which point she filed an appeal to the Veterans Court for
Mr. Carter.
Before the Veterans Court, Mr. Carter argued that,
but for the Board’s mistake in not sending his attorney
the 90-day letter, he would have provided the Board with
evidence supporting a new theory of entitlement, namely,
that a specific incident during his Army service caused a
new back injury (rather than merely aggravating an old
one). He also argued that some evidence supporting this
new theory already existed in the record and that, under
Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir.
2009), the Board was required to review his file to determine
the merits of that new theory—whether or not the
parties’ joint motion for remand arguably narrowed the
scope of the Board’s task on remand.
The Veterans Court affirmed the Board’s decision.
See Carter v. Shinseki, 26 Vet. App. 534 (2014). It held
that the Board’s notice error was cured by, among other
things, his new counsel’s receipt of her client’s complete
claim file, even though the explicitly stated deadline for
submitting new evidence had passed by then. Id. at 545–
46. And, addressing a broader legal question not specifiCARTER
v. MCDONALD 5
cally tied to the notice issue, it concluded that a veteran
and the government may agree to narrow the scope of the
Board’s obligation to review the record on remand, even if
no narrowing occurred in this case. Id. at 542–43. Mr.
Carter appeals under 38 U.S.C. § 7292(a).
DISCUSSION
Mr. Carter appeals the Veterans Court’s decision that
the Board did not deprive him of the required notice of the
opportunity to submit new materials, despite the Board’s
admitted failure to notify his counsel of the deadline for
submitting those materials until after the deadline had
passed. The appeal concerns only the legal correctness of
the Veterans Court’s rationale for finding a notice deficiency
cured. The appeal therefore presents a question of
law falling within our appellate jurisdiction. 38 U.S.C.
§§ 7292(a), (c), (d)(1).
The Board failed to give Mr. Carter’s counsel notice of
an unambiguously stated deadline for submitting evidence
until the deadline had passed. The Veterans Court
concluded that the Board’s initial notice error was
“cured,” pointing to the facts that Mr. Carter’s counsel
had advance knowledge that remand proceedings would
be forthcoming, received the claim file (containing the 90-
day letter) after the evidence-submission deadline had
passed, and then took no action until she received the
Board’s February 2011 decision in December 2011. We
conclude otherwise as a matter of law. Because we cannot
find the uncured notice error harmless, we vacate the
Veterans Court’s decision and remand with instructions
to return the case to the Board to allow Mr. Carter to
submit new materials according to the procedures agreed
to in the earlier joint motion for remand. As the record
may change on remand, we do not decide whether the
Veterans Court committed any error with respect to
whether a remand motion like the one in this case could
alter the Board’s otherwise-applicable duty regarding
CARTER 6 v. MCDONALD
consideration of issues raised by the record. See Robinson,
557 F.3d at 1362.
The Board expressly and unambiguously gave Mr.
Carter precisely 90 days to submit evidence on remand,
the period starting the day the Board mailed him the
letter informing him of that opportunity: “any additional
argument or evidence . . . must be submitted . . . within
90 days of the date of this letter.” J.A. 71 (italics added).
As one would expect given the nature of a client’s reliance
on counsel, a VA regulation required the Board to
“suppl[y]” Mr. Carter’s “recognized attorney,” as defined
by 38 C.F.R. § 14.629, “with a copy of each notice to the
claimant respecting the adjudication of the claim,”
§ 1.525(d). The government does not dispute the applicability
of 38 C.F.R. § 1.525(d) in this case. That regulation
required the Board to give Mr. Carter’s counsel notice of
the deadline running from the Board’s mailing of the 90-
day letter to Mr. Carter.
That regulatory requirement of notice can only sensibly
be construed to require that the notice to counsel be
timely, which requires, at a minimum, notice before the
expressly stated deadline has passed. We could hardly
interpret the notice requirement any differently given the
nature of “notice.” See, e.g., Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950) (notice must
be “reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections”);
In re Smith, 582 F.3d 767, 780 (7th Cir. 2009)
(notice must come sufficiently in advance of a critical
deadline to give the affected party “a reasonable opportunity
to take appropriate action before the deadline
. . . passe[s]”); Doe v. U.S. Dep’t of Justice, 753 F.2d
1092, 1112 (D.C. Cir. 1985) (notice must be given “before a
hearing if there is to be a meaningful opportunity to
respond”); Bell v. Parkway Mortg., Inc. (In re Bell), 309
B.R. 139, 157 (Bankr. E.D. Pa. 2004) (notice of a borrowCARTER
v. MCDONALD 7
er’s right to rescind a loan, received after the rescission
deadline expired, was “meaningless”); 32 Wright & Koch,
Fed. Prac. & Proc.: Judicial Review § 8222 (1st ed. 2006)
(“Fairness . . . requires that the notice be given sufficiently
prior to the adjudication so as to allow the party to
adequately participate.”). The government cites no authority
to the contrary. And the Board undisputedly
failed to meet the pre-deadline-notification requirement.
The Veterans Court nevertheless held that the notice
error was “cured.” At least in this context, a “cure” of the
notice defect must mean some source providing notification
of the same opportunity a correct notice would have
provided. There was no such cure here. The only notification
Mr. Carter’s counsel ever even arguably received
was the 90-day letter itself (as part of the claim file).1
Without an additional notice, we do not see how the notice
failure could have been cured unless the applicable law
itself contemporaneously put Mr. Carter’s counsel on
notice that the 90-day letter could not be applied according
to its unambiguous terms, i.e., unless the law informed
his counsel that, despite the unambiguously
stated deadline, Mr. Carter was legally entitled to submit
evidence past the deadline and have it considered by the
Board exactly as if it had been submitted before the
deadline. There was no such law.
To begin with, no clear countermanding of the unambiguous
Board letter can be found in a regulation discussed
by the parties, 38 C.F.R. § 20.1304(a). That
regulation provides that “[a]n appellant and his or her
representative, if any, will be granted a period of 90 days
1 Because the required notice was of the starting of
the 90-day clock, it is not enough that Mr. Carter’s counsel
participated in the remand negotiations and received
the Veterans Court’s remand order—which did not give,
and could not have given, notice of the starting date.
CARTER 8 v. MCDONALD
following the mailing of notice to them that an appeal has
been certified to the Board” and specifies certain rules. It
is enough for present purposes to note that the government
itself insists that the regulation does not apply at all
here. Citing the “certified to the Board” language, the
government argues that the regulation applies only to
cases that arrive at the Board on appeal from the regional
office, and not to cases arriving at the Board by way of
remand from the Veterans Court. Gov’t Br. 21; see Carter,
26 Vet. App. at 537 n.4 (“[N]o provision of § 20.1304
applies to a remand from the Court to the Board . . . .”).
The government’s argument of inapplicability of the
regulation means, at a minimum, that the regulation did
not clearly give notice that the deadline stated in the
Board’s 90-day letter was legally inoperative.
Neither did the Veterans Court decision, Kutscherousky
v. West, 12 Vet. App. 369, 372 (1999) (per curiam),
which was cited in the joint motion to remand that the
remand order incorporated, J.A. 68, 70. The cited portion
of Kutscherousky states:
[I]n every case in which the Court remands to the
Board a matter for adjudication . . . an appellant
is entitled, until 90 days have expired after the
Board mails to the appellant a postremand notice
to the following effect, to submit, under the parameters
set forth in 38 C.F.R. §§ 19.37,
20.1304(a), without a showing of good cause, additional
evidence and argument, or to request by the
end of such 90 days a “hearing on appeal” at
which the appellant may submit new evidence, to
be considered by the Board . . . .
Kutscherousky, 12 Vet. App. at 372. That language
strongly tends to reinforce rather than override the
Board’s letter in this case when it refers to the submission
period as starting when “the Board mails to the appellant
a postremand notice.” And the subsequent language
CARTER v. MCDONALD 9
provides no clear contrary message in referring to
§ 20.1304(a). That reference, even if it overcame the
government’s objection to the applicability of the regulation
to this remand case, might be only to the rules of the
regulation separate from the regulation’s language about
“the mailing of notice to them” (the claimant and his or
her representative).2 We think it too strained to suggest
(if the government does) that the unambiguous Board
letter could be clearly seen at the time to have been
overridden by the indirect incorporation of one possible
interpretation of Kutscherousky.
The Veterans Court cited Matthews v. Principi, 19
Vet. App. 23 (2005), but the existence of that decision on
the books cannot have provided Mr. Carter’s counsel the
clear letter-overriding notice required for a cure here. In
Matthews, the court held that an attorney’s receipt of a
Statement of the Case contained in a response to a request
for a veteran’s claim file (under specific circumstances
not present here) constituted the required
mailing, which then started the clock for filing an appeal.
Id. at 29. The ruling that the particular clock restarted in
that context did not provide Mr. Carter’s counsel clear
notice that the clock restarted in the present context,
contrary to the clear deadline in the Board letter.
Moreover, the law certainly gave Mr. Carter’s counsel
no clear notice that any post-deadline opportunities for
discretionary relief from the Board for a late filing were
the same as the pre-deadline entitlement to consideration
of evidence. When Mr. Carter negotiated the remand to
2 At argument, counsel for the government suggested
the opposite, stating that, under Kutscherousky’s
language, the 90-day period commences upon mailing the
notice “to the appellant . . . , and so there’s no dispute that
Mr. Carter did get the notice here.” Oral Arg. at 24:15–
24:50.
CARTER 10 v. MCDONALD
the Board, he did not secure merely the opportunity to ask
permission to submit new materials on remand; he requested,
and the government guaranteed, an unrestricted
right to submit new materials for a 90-day period following
the required mailing. No law gave Mr. Carter’s counsel
notice that, upon receiving the 90-day letter after the
deadline had run, she still had the right to have the Board
consider late-submitted evidence as if it had been timely
submitted.
The Veterans Court did not cite anything providing
such notice. It said that Mr. Carter would have been
entitled to “raise[] arguments to the Board” even after the
final decision had issued and that “the Board would have
been required to consider them.” Carter, 26 Vet. App. at
546 (emphases added). Even if the Veterans Court is
correct, but cf. Gov’t Br. at 16 n.4 (the government states
that it is “not aware of the authority for the Veterans
Court’s statement here”), an obligation to “consider arguments”
is not an obligation to consider evidence as if it
were timely submitted. The Veterans Court later stated,
without identifying any authority for the proposition, that
Mr. Carter was not “prevented from presenting additional
argument or evidence.” Carter, 26 Vet. App. at 546. That
he was not “prevented from presenting” evidence does not
mean that the Board was obliged to consider the evidence
as if timely submitted, much less that this was clear at
the time. And, although the Veterans Court often grants
relief from appeal deadlines missed on account of an
initially defective (but later-corrected) notice, see, e.g.,
Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992), there
was no clear basis for relying on that practice as applying
to the non-appeal deadline at issue here.
In these circumstances, we conclude that the Veterans
Court legally erred in finding a cure of the notice defect.
That conclusion requires a vacatur and remand unless we
find the error to be harmless. See 38 U.S.C. § 7261(b)(2);
Shinseki v. Sanders, 556 U.S. 396, 406 (2009). We cannot.
CARTER v. MCDONALD 11
The Veterans Court made no determination that, if Mr.
Carter’s counsel had received the notice in a timely fashion,
she would have submitted no evidence. The government
has not sufficiently made such an argument on
appeal, at most making a passing assertion inadequate to
preserve the point. And in any event, we have no basis
for finding harmlessness of the notice error.
CONCLUSION
For the foregoing reasons, we vacate the decision of
the Veterans Court, and we remand the case for a further
remand to the Board, to which Mr. Carter can submit new
materials in accordance with the terms of the original
remand order from the Veterans Court.
Costs awarded to appellant.
VACATED AND REMANDED

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