Summary of the Case
The Veteran 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, the Veteran’s claim was denied because there was no medical evidence connecting his cervical spine injury to his service or his lumbar spine injury. The Veteran did not file an appeal and so this decision became final. However, in April of 2009, the Veteran sought to re-open his cervical spine claim, but the regional office denied this request. The Veteran’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 the Veteran 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. The Veteran 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 the Veteran’s claim. The Board found that the Veteran’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 the Veteran’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 the Veteran 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 the Veteran 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 the Veteran 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 the Veteran the full 90 days to submit new argument and evidence in support of his claim.
Judge Greenberg: We’re here today in the matter of Clark 16-2826. Will counsel for both parties please make your appearance for the record?
Sarah Barr: Good morning, Your Honors. Sarah Barr for Mr. Eddie Clark from law firm Chisholm Chisholm & Kilpatrick and with me at counsel’s table is Robert Chisholm also of the firm.
Judge Greenberg: Thank you.
Mark Vichich: Mark Vichich up here on behalf of the Secretary today. I’m accompanied today by Richard Daley, Deputy Chief Counsel of the Department of Veterans Affairs.
Judge Greenberg: Thank you. Let me say before we begin that there are two notable events in the history of American Veterans today. It was on this day in 1636, as many of you recall, that the Massachusetts colonial legislature created the organized militia and therefore created the first potential veteran in the history of the United States. I’ve been on the court almost five years to the day and this is the first hearing that I’ve presided over. So that’s the second notable event. Are both parties ready to proceed? Go right ahead.
Sarah: We are reserving 10 minutes for rebuttal. Good morning, Your Honors. May it please the court. The secretary agrees that the veteran was entitled to 90 days from the post-remand notice during which he was permitted to submit evidence and have it considered by the board. The veteran must be aware of the date certain by which he must take action or otherwise forfeit his right to submit additional evidence to the board.
We request the court to specifically announce a rule that veterans are entitled to 90 days after the post-remand notice during which they may submit evidence and have it considered by the board absent and explicit waiver of the full 90-day time period.
Judge Greenberg: Well, let me just stop you there. I know there’s been discussion back and forth between the parties in the briefs on case law. Particularly, what is it? Kutscherousky in 1995 or whenever it was. But aren’t we really talking about a statute here 38 USCA 7112 which says, “The secretary shall take such actions as may be necessary to provide for the expeditious treatment by the board of any claim that is remanded to the secretary by the Court of Appeals for veterans claims.”
My question is, are you content with 90 days assuming you get the full 90 days is being consistent with that statute or would you agree that the court may fix whatever time or conditions or requirements consistent with this statute?
Sarah: We think 90 days is the appropriate amount of time. This is because of the Kutscherousky case and also because of the 20.1304(a).
Judge Greenberg: Keep going.
Sarah: Kutscherousky held that in every case in which the court remands to the board a matter for adjudication, appellant is entitled until 90 days have expired after the board mails to the appellant a post-remand notice to submit under the parameters set forth in 19.37 and 20.1304(a), without a showing of good cause, additional evidence and argument, or to request to hearing. The court found that this holding was consistent with the shift of the claim upon remand by the court from the court’s adversarial process back to the non-adversarial process.
Judge Greenberg: Sorry to interrupt, but that’s my whole point. Why do we even have to consider that case if we have a subsequent Act of Congress that says, as I’ve just read it to you, is that case of any continued vitality or validity when it comes to an analysis of what the secretary is bound to do with a remand from this court?
Sarah: Your Honor, I don’t think they’re inconsistent. I think that the secretary is required to provide expeditious treatment to remand, but allowing the 90 days is not going to hinder the secretary’s ability to do that.
Judge Greenberg: But what you’re really saying as I understand it is lessen or fewer or less than 90 days is capricious.
Sarah: Yes, he–
Judge Greenberg: It may not be arbitrary, it may not be unreasonable, but it’s at least capricious.
Sarah: The problem is really the lack of a date certain not necessarily the lack of the 90 days. The 90 days comes from Kutscherousky in 20.1304(a).
Judge Greenberg: So the veteran thinks he’s got 90 days but then the secretary makes a decision within the 90-day period and he’s out of work because he doesn’t have any notice that it’s coming?
Sarah: Right, Your Honor, and that’s a big problem–
Judge Greenberg: That’s capriciousness, isn’t it?
Judge Greenberg: Okay. Keep going.
Judge Meredith: Could I actually jump in then? So he doesn’t have notice that it might be coming, but here the appellant got a notice and it said that, “Within 90 days or when the board issues a decision, whichever comes first, you have the full right to submit evidence.” Is it possible under that reading of the “whichever comes first” that the appellant would have no opportunity to submit evidence if the board were to issue a decision right away?
Sarah: It is possible, and that’s why that phrase is problematic and also violates appellant’s right to due process. A fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. The notice provided in this case, as you just stated, fails to ensure this requirement because the veteran isn’t on notice of any actual deadline by which he must submit additional evidence. The fact that there was no date certain means that the notice was not meaningful. It didn’t afford him the meaningful opportunity to respond that appellants must be afforded. There can be no government interest that can overcome the requirement for a date certain in this case.
Also, the secretary agrees that that language is not for application on a remand from the court back to the board. The secretary agrees that 90 days is the appropriate rule and so we would ask the court to clarify that to the extent there’s any confusion left that Kutscherousky did not explicitly hold that 90 days was the rule. We ask the court to clarify that today.
Additionally, Your Honors, the appellant cannot waive the remainder of the 90 days unless he does so explicitly. This is first because the due process issue and a veteran cannot waive a constitutional right implicitly. The secretary’s position is that by requesting relief on the merits, the veteran has indicated that the case was ready for a board decision. But the veteran doesn’t have to affirmatively tell VA that he still wants the right to his 90 days after VA has already provided him with a right to 90 days.
Waiver has to be intentional, informed, knowing, voluntary, and free. All that the veteran’s representative said, in this case, was that they were looking forward to a decision representing sound rating principles consistent with the department’s policy of a liberal interpretation of applicable laws.
Judge Greenberg: Is that a lawyer?
Sarah: That was the DAV, Your Honor. The waiver–
Judge Greenberg: Would it make a difference in your view whether the veteran was represented by counsel, or in this case of Veterans Service Organization?
Sarah: No, your Ho–
Judge Greenberg: Who made that representation to the secretary?
Sarah: No, Your Honor, it wouldn’t matter. Explicit way there is explicit, unequivocal, it’s clear, there can be no doubt that the veteran is intending to waive his right to the remainder of the 90 days whether he’s represented or not. The Janssen case supports our argument that explicit waiver is required. In that case, they held that, yes, an appellant can make his own choice about whether or not he wants to waive his own procedural rights. That’s what the appellant did in that case because he’s in the best position to know whether those procedural rights could help him in the future. But the Court in Janssen specifically said that waiver must be knowing, intentional, voluntary, free, informed, clear, and unequivocal, and the waiver in this case, was none of those things.
The Court in Janssen did cite Williams, Tellex and Maxson. Those cases permitted implicit waivers of the court’s consideration of VCAA on appeal, but implicit waiver isn’t okay in this case. The court in those cases issued an order inviting the responses from the parties to an appeal as to the impact of the VCAA on the disposition of that appeal, but neither party responded to the invitation. Here, there’s no invitation. There’s nothing that requires veteran to affirmatively do anything to obtain his right to the 90 days.
Your Honors, once again, we’re specifically asking the court to announce a rule today so that this is clear in the future what happens when a case comes back from remand from the court back to the board, and the rule should be that veterans are entitled to 90 days after the post-remand notice during which they may submit evidence and have it considered by the board absent and explicit waiver of the remainder of that 90-day period.
Meredith: In secretary’s brief, they argued that if we’re talking about a due process violation, that the appellant would need to establish harm and in their view that would require showing that the appellant has identified evidence that would have been submitted during the 90-day period. We viewed argued that there’s harm because the appellant has said he has intended to submit a nexus opinion. Are you saying that or alleging the nexus opinion does exist? Or just that theoretically, he may have been able to obtain one?
Sarah: The record doesn’t specifically indicate whether anything exists or not, but I think the point is he had 40 more days to obtain whatever it was that he wanted to, to request a hearing, to submit a statement. It didn’t– I’m sorry. It didn’t have to be a medical nexus opinion to reopen the case since this is just a new and material evidence issue. He could have merely submitted a statement claiming for example that a doctor told him that he was diagnosed with arthritis which may open up a 3.303b issue. That for example, could have been enough to be new and material evidence and reopen the claim, but we just don’t know, Your Honors, what he would have submitted in that 40 days so it would be speculative to assume that he did not have additional evidence to submit.
Meredith: You don’t think there’s any showing that’s needed that some evidence did exist during that 90-day window that you didn’t have an opportunity to submit?
Sarah: No, Your Honor, because even if the evidence didn’t exist yet he still had 40 more days to go out and get it.
Meredith: Is it no relevant to a harm determination here that by a brief, he was asserting that he had a medical nexus opinion that he wanted to submit? This particular veteran has been saying since 2009 that he wanted to submit a nexus opinion. Does that weigh into the equation at all?
Sarah: I don’t think so, Your Honor, because the fact that he’s had previous opportunities to submit evidence or that he previously said he’s going to submit evidence doesn’t take away from his 90-day right. There’s no prerequisite for the 90-day right to apply. The secretary’s conceding that the 90 days applies no matter what. There’s nothing in the law that says those prior chances or his prior assertions could somehow take away that right that VA has given him.
Meredith: On the topic of erroneous deprivation that the parties briefed. You talked in your brief about 38 CFR 20.1304(b)(1), and I believe you asserted that that would have given the appellant the right to submit evidence after the board decision. I know the secretary argues that regulation doesn’t apply, but if it does, and if it does allow the submission of evidence after the board decision that happens within that 90 days. Does that opportunity to submit evidence have relevance to determining whether there was a high or low risk of erroneous deprivation under Matthews?
Sarah: No, because you have to show good cause so the right under (b)(1) is not the same as the right within the 90 days. If a veteran can’t show good cause then he’s out of luck.
Meredith: Would later discovered evidence or later acquired evidence meet that standard of good cause if he came on a nexus opinion after the 50 days have run?
Sarah: I’m actually not sure if that meets the requirement, but I think the point is the burden is higher on the veteran to be able to introduce new evidence after the 90 days. It also it has to be– the burden is higher for him to introduce the evidence after the 90 days. He doesn’t have the same unequivocal right that he had during the 90 days.
Meredith: But is it relevant to whether there’s a risk of erroneous deprivation that that right in some form exists whether it’s by good cause or otherwise?
Sarah: No, Your Honor, because the erroneous deprivation is the deprivation of the right to a date certain. He’s being deprived of that either way. He’s being deprived of his right to know how much time he has left to submit evidence and have it considered by the board.
Meredith: In this case, the appellant did actually respond to the May 2016 notice from VA. Is there anything in VA policy or regulations that require that the board issue a decision at any point during that 90 days without having heard from the veteran at all?
Sarah: If 20.1304(a) applies then yes, the board can issue decision whenever it wants, but again, we think that would violate the veteran’s due process right to a date certain.
Meredith: Is it your understanding that once you receive that letter, you may have had the opportunity to ask the board to hold open that 90-day period for the entire time?
Sarah: But the veteran shouldn’t have to ask for a right that he’s already been given explicitly by VA.
Meredith: But that may have been a possibility.
Sarah: I don’t think the veteran or a representative is on notice that that’s a requirement. There’s nothing in the law suggests that in order to ensure his right to the 90 days, the veteran has to then state, “Yes, I want my right to the 90 days.”
Judge Greenberg: Anything else?
Sarah: No, Your Honor.
Judge Greenberg: We understand your case. You reserve some time?
Sarah: Yes, I’ll reserve the remainder of my time.
Judge Greenberg: Thanks very much. Counsel of the Secretary.
Mark: Again, I’m Mark Vichich. I’m appearing on behalf of the secretary today. The secretary does not have a regulation that discusses the procedures that occur when this court remands a case to the board. The board does have certain requirements and those requirements are established by this court’s decision in Kutscherousky. The court, in that case, looked at both the board’s current procedures as discussed is in its 1995 Chairman’s Memorandum and looked at certain portions of 20.1304(a).
As a result of the Court’s Kutscherousky decision and looking at those two authorities, four principles emerged which are important here. Number one, in every case where this court remands a matter to the board, the board will send a letter. Number two, the date of that letter will begin a 90-day period. Number three, the veteran will be able to submit both argument and evidence during that period, and number four, evidence received after that 90-day period may be subject to a showing of good cause.
Judge Greenberg: What about the decision within the 90-day period without telling the veteran that we’re going to make a decision? You’ve got 40 days, 50 days, 60 days left. Get cracking.
Mark: Well, the regulation 20.1304 states that the board may issue a decision the sooner of 90 —
Judge Greenberg: I understand, but we’re being asked to decide whether that regulation has applied or has– we’re not here to decide on the regularity of the adoption of the regulation, we’re here to make a determination as to its application. Isn’t it capricious to tell the veteran you got 90 days, but we can decide it within the 90 days and we don’t have to tell you what we’re doing or when we’re doing it?
Mark: And that, Judge Greenberg, is not the secretary’s position. Our position here is that that particular portion of the regulation does not apply. That’s why in our Supplemental Memorandum of Law, the secretary said, “No, 20.1304 does not apply.” That’s the short answer. It does not apply. The court’s decision in Kutscherousky applies and what the court did in that decision was take certain principles of the regulation and adopted this new procedure. So the regulation does not apply as written. That’s the secretary’s position.
Judge Greenberg: No, no, I’m just following your argument, the four principles that you just mentioned, that the secretary has adopted with regard to remands from this court. So, that was my question to you was based upon your representations of these four pillars or concepts that the secretary employs.
Number one. Number two, what about the statute that I made reference to which comes after Kutscherousky. The secretary shall take such actions as may be necessary to provide for the expeditious treatment by the board of any claim that is remanded to the secretary by this court. Wouldn’t that imply either adopting regulations broadly-speaking or taking some actions in particular cases to provide for the expeditious treatment?
Mark: The board or the secretary has been required to provide expeditious treatment for remanded claims as early as 1994 under the Veterans Improvement Act of 1994.
Judge Greenberg: But I’m reading from a 2003 statute that is after Kutscherousky.
Mark: Yes, but what that statute requires is expeditious treatment which the board had been required to do even before Kutscherousky as a result of that 1994 statute which is cited in the Chairman’s Memorandum at the first page of the appendix of our Supplemental Memorandum of Law.
Judge Greenberg: All right. If you don’t mind, why is it that it’s fair for the board to be able to make a determination anytime within the 90 days without telling the veteran in advance, we’re making the decision. Get whatever supplemental material you want to us.
Mark: It’s because rights are subject to waiver. Constitutional rights, statutory rights, regulatory rights are subject to a waiver and in this case, the veteran’s representative informed the board they looked forward to a decision, and from that point, the board was permitted to issue a decision. There’s no other–
Judge Greenberg: You mean to say that that letter from the– or what is it, a letter or– was it a letter?
Mark: The letter from the —
Judge Greenberg: From the VSO, right?
Judge Greenberg: You say that is a waiver of the remaining time on the 90 days?
Mark: Yes, Your Honor.
Judge Greenberg: That’s the way the secretary interpreted that?
Mark: Yes, and that’s the position we articulated in our Supplemental Memorandum of Law and that’s consistent with this court’s decisions in Del Rosario v. Peake, and Anderson v. Brown.
In those cases, the veterans have a right to a hearing. They did not come out and say, “I affirmatively, knowingly waive my right to a hearing.” They did not, but they took certain actions that gave the secretary reason to believe that they did not want a hearing and that’s what happened in this case. The veteran did not say, “I affirmatively, knowingly waive my right to the remainder of the 90 days.” What he said was, “We look forward to a decision,” which gave an indication to taking affirmative steps to indicate to the board that the case was ready for a decision.
Meredith: So, are you saying that the board could not have issued a decision within the 90 days without having heard from the appellant?
Mark: Yes, absolutely. That is the —
Meredith: But the notice that you sent to this appellant says, “You can submit evidence within 90 days of this letter until the board issues a decision.” It doesn’t say, until we hear from you. How would they know that you weren’t going to issue a decision until you heard from appellant?
Mark: Yes, that is correct, and if the response had included anything that indicated that they were not submitting additional evidence because they relied on that letter. If they said, “We wanted to submit additional evidence, but it looks like you’re not going to give us enough time,” that would be a different case.
Meredith: What policy or regulation or procedures that you’re looking to that says, “Within the 90 days, don’t issue a decision until you’ve heard from the appellant.”
Mark: The Kutscherousky case provides that procedure. That’s why we agreed– the secretary concedes that the instructions provided in that letter were erroneous. We’re not arguing that that letter was the correct information. The letter should have said, “You have 90 days,” but it said, you have 90 days unless we issue a decision, but again, there was nothing in the response that indicated that they were relying on that letter to their detriment. There’s nothing suggesting that the reason the veteran failed to submit a nexus opinion was because he felt that he did not have enough time to do so.
Judge Greenberg: But wouldn’t– Sorry.
Meredith: No, go ahead.
Judge Greenberg: Wouldn’t adoption of a fairly straightforward rule as a result of a decision of this court that 90 days is 90 days, and you have to explicitly waive it in all the customary manners known to the secretary or any other governmental agency. Wouldn’t that solve all these problems? We look forward to your decision, you interpret that. The secretary interpreted that meaning a waiver of any further time on his 90 days. Why not just adopt 90 days, we said it. It’s your regulation. It’s a veteran-friendly regulation. It’s meant to allow a veteran 90 days I presume that’s the basis for it. So why not just adopt a firm rule? 90 days is 90 days. It doesn’t matter what you tell us or when you tell us it unless it’s explicit.
Mark: There are always ways to think of what would happen if there was a regulation. There could be a regulation but the secretary has never had a regulation dealing with this situation and this court’s been hearing cases for nearly 30 years. The Kutscherousky decision in particular clarified that these procedures in existence at the time and that has existed for more than 20 years, so–
Judge Greenberg: You don’t think this court can ever revisit a case decided 20 years ago?
Mark: Yes, of course, but that doesn’t —
Judge Greenberg: We’re being asked to revisit it now, aren’t we?
Mark: But that doesn’t mean the secretary needed a regulation to spell out this procedure. The Kutscherousky decision already lays out the procedure and the secretary. There’s no need to have an additional regulation to describe —
Judge Greenberg: What about the Kutscherousky case allows the secretary to say, on the one hand in the regulation you’ve got 90 days and on the other hand, we can decide it within the 90-day period without telling you we are going to decide it? Wouldn’t a reasonable person looking at that 90 days, think they have 90 days. They may even come after 90 days and say, “Look, I was in a coma for 90 days.” Maybe we ought to apply some equitable tolling principles, even to the 90-day rule, but at least when we’re focused on the 90 days, doesn’t a veteran have a right to rely on the 90 days?
Mark: The secretary agrees that the veteran has a right to 90 days, but like all rights, constitutional rights, regulatory rights, they are waivable.
Judge Greenberg: And you say the letter from the VSO here waived that, right?
Mark: That is correct.
Judge Greenberg: Okay.
Judge Greenberg: I understand your position.
Mark: That is our position. Turning to the second question in 20.1304(b)(1) as we argued in our Supplemental Memorandum of Law that regulation deals only when evidence is received outside of the 90-day period which did not happen here even if the regulation applies, or that portion of the regulation applies, that did not occur here.
Meredith: So if that regulation did apply, you’re saying, “Would it allow the submission of evidence after the board issued decision, but before the 90-day period grant?”
Mark: If– like say in this case, the board received a response that it construed as a waiver and issued a decision and the regulation would not apply as to that claim and the regulation does–
Judge Greenberg: No, I think the– Sorry to interrupt, but I think what Judge Meredith is asking is, notwithstanding the regulation with the secretary have allowed the submission of supplemental materials or evidence or the regulation if it talks about getting representation or so forth between the time the board issues a truing and the exploration of the 90 days.
No, the answer is no. Once the board decides, that’s the end of it.
Judge Greenberg: Okay. I think we understand the Counsel keep going. If you’d like to.
Mark: Those are all the points that the secretary had to make today.
Judge Greenberg: Excellent.
Mark: There are no further questions.
Meredith: Just following up on the conversation we’re having with the appellant’s counsel. You argued initially that regarding alleged due process violations that appellant would need to show harm by specifically pointing to evidence that would have been submitted during that 40-day period. So what level of argument or evidence do you think is needed to show harm? Is it enough to speculate that you might have submitted something. Does the evidence needs to have existed during that period of time? What’s the threshold for showing harm?
Mark: The appellant needed to at least describe a particular evidence. In here, in as early as 1999 and again, 2010, he referred vaguely to some evidence which may have existed and may have been evidence that he intended to obtain. He had several years until this court’s memorandum decision to submit that evidence. He got the remand, the record reopened, he was given another opportunity, and he, through his representative, responded and asked the court for decision.
But just to respond to your question, Judge Meredith is, there had to be some sort of particular description of evidence other than something more than just a vague allegation of, “I would have submitted additional evidence if I had more time,” and our position is that he has not met that burden here.
Judge Greenberg: Thank you.
Mark: Thank you.
Judge Greenberg: What about that? Did he have any evidence to submit? Things been going on a long time.
Sarah: Your Honor, the record —
Judge Greenberg: Don’t you think you have to offer, a proffer of proof, what you would have submitted within that remainder of the 90-day period?
Sarah: No, Your Honor, not to get–
Judge Greenberg: Why not?
Sarah: Because the veteran has the right to the 90 days. It’s a right that he’s been given. He doesn’t have to —
Judge Greenberg: It’s a real right in your view and it’s immutable once they announced 90 days, the secretary has to honor the 90 days. A miracle might occur or you might find additional evidence, but that’s up to him. Is that your argument? As opposed to, “What would you have submitted within that remaining 90-day period?” That’s what the secretary wants to know. What’s left to submit? Tell us.
Sarah: He could have submitted a statement, as I said in my opening. Perhaps that said a doctor told him, he was diagnosed with arthritis, which would potentially raise a 3.303(b) or issue.
Judge Greenberg: But did he do that?
Sarah: Not yet, but he still had 40 more days to do so.
Judge Greenberg: So your argument is it’s none of the secretary’s concern or shouldn’t be any of the secretary’s concern what he might or might not have submitted because there is this immutable 90-day period on which he’s entitled to rely.
Sarah: Yes, Your Honor, and we can’t read the veteran’s mind. I’d cite to Wagner, we can’t speculate as to what the effect of an error would be when truly nobody can know if he would have submitted additional evidence in the next 40 days.
Meredith: Are you suggesting we don’t take into account prejudicial error harm at all analysis if there was an error in this case?
Sarah: We should take that into account, but the prejudice is that he could have still submitted something in those next 40 days, and we don’t know if he would have.
Meredith: Has he since then?
Sarah: Not to my knowledge, Your Honor. There’s nothing in the record to suggest that he has submitted anything.
Judge Greenberg: Well, you’re here based upon an appeal from the determination of the secretary on this issue.
Judge Greenberg: Is that the reason why he hasn’t? You don’t have to speculate, is there evidence that he would have put in, in that remaining period of time? Do you know?
Sarah: I am not aware of any, Your Honor.
Judge Greenberg: But that’s not central to your argument anyway.
Sarah: No. No.
Judge Greenberg: 90 days is 90 days. You can’t take away this important constitutional right to due process.
Sarah: Correct. I wanted to address Judge Meredith’s question about why wouldn’t the submission of the new evidence, could that be good cause? I looked at the regulation and I believe it could be. Would that be good cause such that the risk of erroneous deprivation would be lower? I think the answer is still no because the secretary just said specifically that they wouldn’t have let the veteran submit additional evidence after the board made the decision. Also, I would point to the Paralyzed Veterans of America and DAV cases both issued in 2003. If I could just have a moment.
Judge Greenberg: Sure.
Sarah: In those cases, the regulations that issue gave the appearance of cutting the one-year time period under 5103(a) short. They didn’t even actually cut the time period short, but they gave the appearance of it. They use phrases like, “If a claimant hasn’t responded in 30 days, VA can decide the claim, but then if the claimant later submits evidence, they have to re-decide the claim.”
So, the court found that that regulation was misleading because it could lead to unsuspecting claimants to believe that they must provide the requested info within the 30 days even though the statute says one year. They found that the fact that the claim could be re-adjudicated doesn’t solve the problem because a claimant might not even know that after the expiration of the apparent timeframe, he could still submit additional evidence. So you run the same risk here in this case. The veteran might not know that after the board makes the decision or after the 90 days he could still submit additional– I mean, he’d have to know all the good cause rules and it just renders the 90-day rule misleading in the same way that the court found those regulations were misleading in Paralyzed Veterans of America and Disabled American Veterans.
Your Honors, I also wanted to distinguish the Anderson case that the secretary brought up. So, hearings are different than the case we have here. In Anderson, the regulation required the veteran to affirmatively submit a request for a new hearing and explain good cause for why he had not attended his last hearing. So then where the veteran did not do that and instead submitted something else, it was reasonable for them to assume that he was waiving any right to a hearing, but here, there’s no similar regulation or rule telling the veteran that he actually has to submit anything or take any affirmative action in order to ensure his right to the 90 days. So that’s the big difference between hearings and the 90-day rule here.
Your Honors, just like to say one more time that we would like the court to announce the rule today that veterans are entitled to 90 days after the post-remand notice during which they may some evidence and have it considered by the board absent and explicit waiver.
Judge Greenberg: Thank you very much.
Sarah: Thank you.
Judge Greenberg: We’ll reserve opinion and the court will now come down and greet Counsel. Thank you very much.
Bailiff: All rise.