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Board Fails to Provide 90 Days After Court’s Decision, CCK Presents Oral Argument

December 8, 2018
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Summary of the Case

Mr. Clark served on active duty in the United States Army from November 1986 to February 1987, and again from May 1993 to November 1995.  He initially applied for service-connected compensation for a cervical spine injury to include as secondary to his service-connected lumbar spine injury in April of 2000.  In January 2001, Mr. Clark’s claim was denied because there was no medical evidence connecting his cervical spine injury to his service or his lumbar spine injury.  Mr. Clark did not file an appeal and so this decision became final.  However, in April of 2009, he sought to re-open his cervical spine claim, but the regional office denied this request.  Mr. Clark’s request to re-open his claim was continuously denied until he appealed to the Court of Appeals for Veterans Claims.  In February of 2016, the Court remanded this matter back to the Board of Veterans’ Appeals.

Board violates the Veteran’s right to a 90-day period

In May of 2016, the Board sent a letter to Mr. Clark notifying him of the February 2016 Court decision.  In its letter, the Board informed the Veteran that he must submit any new argument and evidence within 90 days of the date of the letter, or until the date the Board issues a decision on the appeal, whichever comes first.  Mr. Clark then submitted a letter indicating that he would obtain a nexus opinion, linking his cervical spine injury to his lumbar back injury.  Fifty days after mailing this post-remand letter, the Board issued a decision, declining to re-open his claim.  The Board found that Mr. Clark’s statements that he would obtain medical evidence in support of his cervical spine claim do not constitute an actual report of etiology made by a medical professional, or even suggest the existence of such an opinion.

CCK presents an oral argument at Court 

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that declined to re-open Mr. Clark’s claim for his cervical spine injury.  In December of 2017, CCK delivered an oral argument before the Court in Washington, D.C.  CCK argued that once the Board issued the letter notifying the Veteran of his right to present additional argument and evidence following the remand from Court, he had, as a matter of right, the full 90 days to do so.  Furthermore, the Board violated his right to due process when it allowed adjudication to occur fewer than 90 days after mailing the post-remand notice.  CCK asserted that Mr. Clark did not need to affirmatively state his intention to submit evidence in order to retain the 90 days given by the Board, because rights cannot be waived implicitly.  Here, the 90-day period was afforded to the Veteran as a matter of right.

Court agrees with CCK’s arguments

CCK argued, and the Court agreed, that Mr. Clark did not explicitly waive his right to utilize the full 90-day period provided by the post-remand notice.  Specifically, his letter in response to the post-remand notice did not constitute a waiver.  The Court acknowledges that Mr. Clark may have submitted additional argument and evidence to the Board had he been given the full 90-day period.  Furthermore, the Court agreed that this right cannot be waived implicitly and any waiver of due process must be voluntarily, knowingly, and intelligently made.  However, such was not the case here.  Accordingly, the Court decided that a remand is required for the Board to afford Mr. Clark the full 90 days to submit new argument and evidence in support of his claim.

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