Veteranclaims’s Blog

July 30, 2017

Single Judge Application; Good Cause; § 3.655; § 3.105

Filed under: Uncategorized — Tags: — veteranclaims @ 11:16 am

Excerpt from decision below:

“In the decision here on appeal, the Board did not discuss § 3.655 and relied on § 3.105. Significantly, § 3.655 involves an inquiry into whether the appellant had “good cause” for not attending the scheduled VA examination, and good cause is not considered in § 3.105.
Although the Secretary correctly notes that Mr. Starks did not argue in his brief to the Court that he had good cause for his failure to report, that issue was raised by the record. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009) (Board must discuss all issues raised by the claimant or the evidence of record). In his March 1999 Notice of Disagreement as to the June 1998 rating reduction decision, the appellant
stated that at the time of the scheduled examination he was living at a different location than that to which the examination notice was mailed, and that he did not receive that notice. R. at 3875.
The record also contains a notation from a VA official or employee that Mr. Starks had refused an examination at the designated location and that “[v]et now has moved/lives in Cape Coral.” R. at 3895.
The Board did not make the necessary findings that would allow the Court to apply § 3.655 in the first instance. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”); cf. Fleshman v. West, 138 F.3d 1429, 1433 (Fed. Cir. 1998) (stating “the Board’s underlying findings demonstrate that the agency had already exercised its discretion” and, applying the facts to the law, “the agency would
have reached the same conclusion if it had addressed the legal issue”). The Board’s failure to find whether good cause existed precludes the Court from similarly assessing whether the Board would have reached the same legal conclusion if it had considered § 3.655.”

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

 

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-1532
ROBERT J. STARKS, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Chief Judge: U.S. Marine Corps veteran Robert J. Starks appeals through counsel a January 5, 2016, Board of Veterans’ Appeals (Board) decision that determined a reduction in disability rating from 20% to 10%, effective August 1, 1998,1 for degenerative disc disease (DDD) of L5-S1, was proper.2 On May 24, 2017, the Court affirmed the Board’s January 2016 decision.
On June 14, 2017, Mr. Starks filed a timely motion for reconsideration, or in the alternative, for panel decision. Having reviewed the matter, the Court will grant Mr. Starks’s motion for reconsideration, withdraw the May 24, 2017, decision and issue this decision in its stead. For the following reasons, the Court will set aside the Board’s January 2016 decision and remand the matter for further proceedings consistent with this decision.
1 A June 1998 rating decision reduced Mr. Starks’s disability rating from 20% to 0%, effective July 1, 1998.
A July 1999 rating decision raised the disability rating from 0% to 10%, also effective July 1, 1998. As discussed below, the Board awarded an additional month of non-reduced payment (20% disability) on the basis of a perceived
procedural defect.
2 The Board additionally remanded a claim for a disability rating in excess of 20% for DDD from July 1, 1998, and a claim for total disability on the basis of individual unemployability for further development. The Court
lacks jurisdiction to address these nonfinal matters. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004).
2
I. ANALYSIS
Mr. Starks received a 20% disability rating for his DDD in a November 1996 rating decision. That rating decision stated that “[s]ince there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination.” Record (R.) at 3921.
After Mr. Starks failed to report for a review examination, VA issued an
April 1998 rating decision proposing to reduce his disability rating from 20% to 0%. In an April 15, 1998, letter, VA stated that it planned to stop paying benefits on July 1, 1998. The letter further stated that “[i]f within 60 days of the date of this letter, we receive your statement that you will report for an examination, we will not take the proposed action unless you do not report for the rescheduled exam.” R. at 3890. Subsequently, on June 17, 1998, VA issued a rating decision
effecting the reduction, and notified Mr. Starks of this action in a letter dated June 22, 1998.
In the decision here on appeal, the Board found that the reduction from 20% to 0% was “procedurally defective because the effective date of the reduction (July 1,1998) was less than 60 days from the date of notice to the [v]eteran of the final rating action (June 22, 1998), contrary to the provisions of 38 C.F.R § 3.105(e),(i).” R. at 6. Relying on VA Gen. Coun. Prec. 31-97 (Aug. 29, 1997), the Board further found that this procedural defect did not render the reduction void ab initio. Rather, the Board awarded an additional month of compensation at the non-reduced (20%) rate, adjusting the effective date of the reduction to August 1, 1998, and found that the reduction was otherwise proper.
Mr. Starks argues that the Board erred in relying on G.C. Prec. 31-97, and that VA’s failure to observe the requirements of § 3.105(e) renders the reduction void ab initio. See, e.g., Tatum v. Shinseki, 23 Vet.App. 152, 158 (2009). He asserts that his 20% disability rating should be restored from July 1, 1998, forward.
The Secretary responds that the Board erred in applying the provisions of § 3.105(e), and that 38 C.F.R. § 3.655 (2017) is the applicable regulation. The applicability of § 3.655 is triggered by the failure to report for a scheduled review examination. He asserts that VA complied with the schedule for notification and the response period contained in that regulation, and therefore the reduction was proper. Mr. Starks filed no reply brief in response to these arguments.
The Court, however, cannot generally affirm a Board decision on a ground other than that relied on by the Board. See SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943); Newhouse v.
3
Nicholson, 497 F.2d 1298, 1301 (Fed. Cir. 2007) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”). In the decision here on appeal, the Board did not discuss § 3.655 and relied on § 3.105.
Significantly, § 3.655 involves an inquiry into whether the appellant had “good cause” for not attending the scheduled VA examination, and good cause is not considered in § 3.105.
Although the Secretary correctly notes that Mr. Starks did not argue in his brief to the Court that he had good cause for his failure to report, that issue was raised by the record. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009) (Board must discuss all issues raised by the claimant or the evidence of record). In his March 1999 Notice of Disagreement as to the June 1998 rating reduction decision, the appellant stated that at the time of the scheduled examination he was living at a different location than that to which the examination notice was mailed, and that he did not receive that notice. R. at 3875.
The record also contains a notation from a VA official or employee that Mr. Starks had refused an examination at the designated location and that “[v]et now has moved/lives in Cape Coral.” R. at 3895.
The Board did not make the necessary findings that would allow the Court to apply § 3.655 in the first instance. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”); cf. Fleshman v. West, 138 F.3d 1429, 1433 (Fed. Cir. 1998) (stating “the Board’s underlying findings demonstrate that the agency had already exercised its discretion” and, applying the facts to the law, “the agency would have reached the same conclusion if it had addressed the legal issue”). The Board’s failure to find whether good cause existed precludes the Court from similarly assessing whether the Board would have reached the same legal conclusion if it had considered § 3.655.
Consequently, the Board must make a determination concerning good cause in the first
instance. See Engelke v. Gober, 10 Vet.App. 396, 399 (1997) (holding that Board determination
of whether good cause has been shown is a factual matter). Remand is required for the Board to
apply § 3.655 after finding the appropriate facts.
II. CONCLUSION
Upon consideration of the foregoing, the Court grants Mr. Starks’s motion for
reconsideration, WITHDRAWS the May 24, 2017, decision, and issues this decision in its stead.
4
Based on the foregoing, the Court SETS ASIDE the Board’s January 5, 2016, decision with respect
to the appealed matter and REMANDS that matter for further proceedings consistent with this
decision.
DATED: July 28, 2017
Copies to:
Penelope Gronbeck, Esq.
VA General Counsel (027)

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