Veteranclaims’s Blog

March 18, 2021

Single Judge Application; the framework for constructive possession applies to § 3.156(b). See Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020). “Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.” Id. (citing Monzingo v. Shinseki, 26 Vet.App. 97, 101-02 (2012) (per curiam)). “All relevant and reasonably connected VA-generated documents are part of a record, and therefore, constructively known by the VA adjudicator.” Id. (citing Bowey v. West, 11 Vet.App. 106, 108-09 (1998); Vet. Aff. Op. Gen. Couns. Prec. 12-95, 1995 WL 17875505, at *2). A veteran’s own medical records, generated by the VA itself, are always reasonably related to a veteran’s claims. Id. For this principle to apply, there is no requirement that the VA adjudicator have any actual knowledge of the evidence. Id.;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6357
MIGUEL A. SOTO, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENBERG, Judge: Vietnam War veteran Miguel A. Soto appeals, through counsel, a
May 21, 2019, Board of Veterans’ Appeals decision that denied an effective date earlier than July
27, 2004, for his service-connected major depressive disorder (MDD) with psychosis. Record (R.)
at 4-11. The appellant argues that the Board clearly erred when it failed to provide an adequate
statement of reasons or bases for denying the appellant’s claim because the Board did not
acknowledge or discuss the significance of a Privacy Act request the appellant had submitted to
his representative in June 2000. Appellant’s Brief at 7-13. For the following reason, the Court will
set aside the May 2019 Board decision on appeal and remand the matter for readjudication.
I.
The Veterans Administration was established in 1930 when Congress consolidated the
Bureau of Pensions, the National Home for Disabled Volunteer Soldiers, and the U.S. Veterans’
Bureau into one agency. Akct of July 3, 1930, ch. 863, 46 Stat. 1016. This Court was created with
the enactment of the Veterans’ Judicial Review Act (VJRA) in 1988. See Pub. L. No. 100-687, §
402, 102 Stat. 4105, 4122 (1988). Before the VJRA, for nearly 60 years VA rules, regulations,
2
and decisions lived in “splendid isolation,” generally unconstrained by judicial review. See Brown
v. Gardner, 513 U.S. 115, 122, (1994) (Souter, J.).
Yet, the creation of a special court solely for veterans is consistent with congressional intent
as old as the Republic. Congress first sought judicial assistance in affording veterans relief when
it adopted the Invalid Pensions Act of 1792, which provided “for the settlement of the claims of
widows and orphans . . . and to regulate the claims to invalid pensions,” for those injured during
the Revolutionary War. Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat. 243 (1792) (repealed in part and
amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793)). The , though magnanimous, curtailed
the power of the judiciary, by providing the Secretary of War the ability to withhold favorable
determinations to claimants by circuit courts if the Secretary believed that the circuit court had
erred in favor of the soldier based on “suspected imposition or mistake.” See id.
Chief Justice John Jay1 wrote a letter2 to President George Washington on behalf of the
Circuit Court for the District of New York3 acknowledging that “the objects of this act are
exceedingly benevolent, and do real honor to the humanity and justice of Congress.” See
Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792). Jay also noted that “judges
desire to manifest, on all proper occasions and in every proper manner their high respect for the
national legislature.” Id.
1 John Jay served as the first Secretary of State of the United States on an interim basis. II DAVID G. SAVAGE,
GUIDE TO THE U.S. SUPREME COURT 872 (4th ed. (2004)). Although a large contributor to early U.S. foreign policy,
Jay turned down the opportunity to assume this position full time. Id. at 872, 916. Instead, he accepted a nomination
from President Washington to become the first Chief Justice of the Supreme Court on the day the position was created
by the Judiciary Act of 1789. Id. Jay resigned his position in 1795 to become the second Governor of New York. Id.
He was nominated to become Chief Justice of the Supreme Court again in December 1800, but he declined the
appointment. Id.
2 The Supreme Court never decided Hayburn’s Case. See 2 U.S. (2 Dall.) 409, 409 (1792). The case was
held over under advisement until the Court’s next session and Congress adopted the Invalid Pensions Act of 1793,
which required the Secretary of War, in conjunction with the Attorney General, to “take such measures as may be
necessary to obtain an adjudication of the Supreme Court of the United States.” Act of Feb. 28, 1793, ch. 17, 1 Stat.
324 (1793). Hayburn’s Case has often been cited as an example of judicial restraint, see, e.g., Tutun v. United States,
270 U.S. 568 (1926), but Supreme Court historian Maeva Marcus has argued persuasively to the contrary. See Maeva
Marcus & Robert Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 WIS. L. REV. 527. After all, Jay’s
letter included by Dallas, the Court Reporter, in a note accompanying the decision to hold the matter under advisement,
is nothing more than an advisory opinion that compelled Congress to change the law in order to make the judiciary
the final voice on the review of a Revolutionary War veteran’s right to pension benefits. See Hayburn’s Case, 2 U.S.
(2 Dall.) 409, 410 n.
3 At this time, each Justice of the Supreme Court also served on circuit courts, a practice known as circuit
riding. See RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM (7th ed. 2015).
3
This desire to effect congressional intent favorable to veterans has echoed throughout the
Supreme Court’s decisions on matters that emanated from our Court. See Shinseki v. Sanders, 556
U.S. 396, 416, 129 S. Ct. 1696, 1709 (2009) (Souter, J., dissenting) (“Given Congress’s
understandable decision to place a thumb on the scale in the veteran’s favor in the course of
administrative and judicial review of VA decisions”); see also Henderson v. Shinseki, 562 U.S.
428, 440, 131 S. Ct. 1197, 1205 (2011) (declaring that congressional solicitude for veterans is
plainly reflected in “the singular characteristics of the review scheme that Congress created for the
adjudication of veterans’ benefits claims,” and emphasizing that the provision “was enacted as part
of the VJRA [because] that legislation was decidedly favorable to the veteran”).
II.
Justice Alito4 observed in Henderson v. Shinseki that our Court’s scope of review is “similar
to that of an Article III court reviewing agency action under the Administrative Procedure Act,
5 U.S.C. § 706.” 562 U.S. at 432 n.2 (2011); see 38 U.S.C. § 7261. “The Court may hear cases
by judges sitting alone or in panels, as determined pursuant to procedures established by the
Court.” 38 U.S.C. § 7254. The statutory command that a single judge5 may issue a binding
decision is “unambiguous, unequivocal, and unlimited,” see Conroy v. Aniskoff, 507 U.S. 511, 514
(1993). The Court’s practice of treating panel decisions as “precedential” is unnecessary,
particularly since the Court’s adoption of class action litigation. See Wolfe v. Wilkie, 32 Vet.App.
1 (2019). We cite decisions from our Court merely for their guidance and persuasive value.
III.
The appellant served on active duty in the U.S. Army from November 1969 to
November 1971 as a light vehicle driver. R. at 1846 (DD Form 214).
4 Justice Alito was born in Trenton, New Jersey. SUPREME COURT OF THE UNITED STATES,
https://www.supremecourt.gov/about/biographies.aspx (last visited Mar. 4, 2020). He began his career as a law clerk,
then became assistant U.S. attorney for the district of New Jersey before assuming multiple positions at the Department
of Justice. Id. He then became a U.S. attorney for the district of New Jersey. Id. Before his nomination for the
Supreme Court, he spent 16 years as a judge on the U.S. Court of Appeals for the Third Circuit. Id. In 2005, President
George W. Bush chose Alito to replace retiring Supreme Court Justice Sandra Day O’Connor. Id.
5 From 1989 to 1993, West (the publisher of this Court’s decisions) published this Court’s single-judge
decisions in tables in hard-bound volumes of West’s Veterans Appeals Reporter. Since 1993, West has published this
Court’s single-judge decisions electronically only. I believe the Court should publish all its decisions in print form.
See, e.g., Passaic Cty. Bar Ass’n v. Hughes, 401 U.S. 1003 (1971).
4
IV.
The appellant first filed his claim for “nervousness” in May 1974. R. at 2745-48. The
appellant’s claim was denied in August 1974 and the appellant did not appeal this decision. R. at

  1. The appellant later applied for service connection for a nervous condition in May 1976, but
    the appellant’s claim was denied again, this time for a lack of nexus. R. at 2670. The appellant
    submitted a petition for reconsideration of his claim for service connection for a mental condition
    in December 1980, which was construed as a request to reopen his claim for a nervous condition.
    R. at 2430-31. The appellant’s claim was then denied in August 1981 because new and material
    evidence had not been submitted. R. at 2401. In November 1981 the appellant again submitted a
    request to reopen his claim for service connection for a nervous condition, which was denied in
    June 1982 because the evidence he submitted, though new, did not establish a nexus and was thus
    not material. R. at 2397, 2376. The appellant filed a timely Notice of Disagreement (NOD). R. at
  2. A Statement of the Case (SOC) continued to deny the appellant’s claim in December 1982,
    and the appellant appealed to the Board in January 1983. R. at 2338.
    In June 1983, the Board remanded the appellant’s claims for further development, and
    specifically ordered a “a special psychiatric examination to determine the correct diagnosis of any
    psychiatric disability.” R. at 2318-20. In February 1984, the appellant was provided a VA
    examination in which he was diagnosed with major depression with psychosis; however, a July
    1985 rating decision denied the appellant’s service-connection claim because the “the evidence
    [did] not establish a new factual basis related to the issue of [service connection] for nervous
    condition.” R. at 2276-79. In July 1985, a Supplemental Statement of the Case (SSOC) continued
    to deny the appellant’s claim. R. at 2269-74. In January 1986, the Board then denied the appellant’s
    claim based on the fact that the records did not show the appellant’s diagnosis was service
    connected. R. at 2236-40.
    The appellant submitted another request to reopen his claim for service connection for a
    nervous condition in July 1989. R. at 2160-63. In October 1989 VA deferred the rating decision
    requiring that new and material evidence be submitted, and in November 1989, VA sent the
    appellant a letter requesting that any new and material evidence must be received within 1 year for
    the appellant to receive the earliest effective date possible. R. at 2157, 2151-52. The appellant did
    not send anything to VA after this letter but was seen for a VA psychology consultation in August
    5
  3. R. at 1756-59. During this consultation the appellant reported that during his time in
    Germany he was sent to a stockade after an incident with a sergeant. R. at 1756. The appellant
    stated that this incident ended with his being sent to a hospital for about a week and being placed
    on valium and Librium. Id. The appellant further stated that he is “an introversive isolate,
    preferring to stay indoors and avoid other people who might aggravate him” and he just “feels
    bad”. R. at 1758. The clinical psychologist referred the appellant to an evaluation clinic and a
    suggestion to be seen for a psychiatric evaluation. Id. The psychologist further concluded that the
    appellant “probably has thought disorder with onset possibly occurring while in military service.”
    Id.
    The appellant underwent another VA examination in December 1999, in which he was
    diagnosed with schizophrenia. R. at 2037-39. VA again denied the appellant’s request to reopen in
    February 2000, because the evidence was deemed new but not material as it did not establish nexus
    to service. R. at 1997-2000. In July 2004, the appellant submitted a request to reopen his claim for
    a psychiatric disorder and this time included a claim for service connection for schizophrenia and
    post-traumatic stress disorder (PTSD). R. at 1824-35. In addition to his request, the appellant
    submitted the August 1990 VA psychology consultation. R. at 1831-32. The appellant was
    afforded another VA examination for his PTSD in October 2004 and a psychiatric assessment in
    April 2005. R. at 1805-06, 1499-1504. An April 2005 rating decision denied the appellant’s PTSD
    claim, finding his claimed stressors uncorroborated by his service records. R. at 1487-93. The
    appellant filed a timely NOD in June 2005, but in January 2006, an SOC continued to deny the
    appellant’s claim for service connection for PTSD. R. at 1469-72, 1390-1401. An SSOC issued in
    January 2007 continued to deny the claim and the appellant timely appealed to the Board. R. at
    1287-1301, 1281-84.
    In January 2010, the Board found new and material evidence had been submitted after the
    February 2000 rating decision; the Board remanded the claim so that the appellant’s stressors might
    be verified. R. at 955-70. An October 2010 VA examination report detailed the appellant’s mental
    disorders and the examiner concluded that they date back to his time of military service, when it
    was first documented. R. at 868-72. In a November 2010 SSOC, VA denied the claim because no
    “medical links” showed a nexus between his disability and service. R. at 835-52. The Board
    granted the appellant’s claim in January 2011, and VA assigned the appellant a 50% rating with an
    effective date of July 27, 2004, the date the appellant successfully requested to reopen his claim
    6
    for PTSD and attached the August 1990 psychology evaluation. R. at 726-38, 624-35. The
    appellant was eventually afforded an increased rating, from 50% to 100%, in March 2013, but the
    effective date of July 27, 2004, stayed the same. R. at 188-91, 81-95.
    V.
    In May 2019, the Board denied the appellant’s claim for an effective date earlier than July
    27, 2004, for his service-connected MDD with psychosis. R. at 4-11. The Board rejected the
    appellant’s assertions that he is entitled to an earlier effective date of May 1976, the date of his
    original claim for service connection for a nervous breakdown, and that the VA examiner
    misdiagnosed his psychiatric condition in September 2010. R. at 8. The Board found that “neither
    contention alleges an error of law or fact, such that reasonable minds could not differ as to a
    conclusion that the result would have been manifestly different but for the error.” Id. The Board
    continued through the procedural history of the appellant’s many attempts to reopen his original
    claim and found that the preponderance of the evidence is against the claim because the appellant
    did not submit new and material evidence until 2004.
    VI.
    For pending legacy claims, “new and material evidence received prior to the expiration of
    the appeal period. . . will be considered as having been filed in connection with the claim which
    was pending at the beginning of the appeal period.” See 38 C.F.R. § 3.156(b) (2020).
    The framework for constructive possession applies to § 3.156(b). See Lang v. Wilkie, 971
    F.3d 1348, 1354 (Fed. Cir. 2020). “Evidence is constructively received by the VA adjudicator
    post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably
    be expected to be connected to the veteran’s claim.” Id. (citing Monzingo v. Shinseki, 26 Vet.App.
    97, 101-02 (2012) (per curiam)). “All relevant and reasonably connected VA-generated
    documents are part of a record, and therefore, constructively known by the VA adjudicator.” Id.
    (citing Bowey v. West, 11 Vet.App. 106, 108-09 (1998); Vet. Aff. Op. Gen. Couns. Prec. 12-95,
    1995 WL 17875505, at *2). A veteran’s own medical records, generated by the VA itself, are
    always reasonably related to a veteran’s claims. Id. For this principle to apply, there is no
    requirement that the VA adjudicator have any actual knowledge of the evidence. Id.

    7
    VII.
    The Court concludes that the Board erred when it failed to determine whether the October
    1989 deferred rating decision and subsequent November 1989 letter were final. See Lang, 971 F.3d
    at 1354; see also 38 C.F.R § 3.156(b). The record shows that the appellant underwent a VA
    psychology evaluation in August 1990 that detailed the appellant’s military struggles and included
    an opinion from the psychologist that the appellant’s mental condition may have had its onset in
    service. R. at 1756-59. Given that this record was generated by VA and reasonably related to his
    claim, this record should have been considered constructively possessed by VA within 1 year of
    VA’s November 1989 letter. Lang, 971 F.3d at 1354. Remand is required for the Board to
    determine whether the July 1989 rating decision was final. See id.; see also 38 C.F.R. § 3.156(b).
    Because the Court is remanding the appellant’s claim, it will not address the appellant’s
    remaining argument pertaining to this matter. See Dunn v. West, 11 Vet.App. 462, 467 (1998).
    The appellant may also present, and the Board must consider, any additional evidence and
    arguments on remand. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). On remand, if the
    appellant would like VA to obtain additional records, the Board should also obtain any additional
    medical records necessary in evaluating appellant’s claims. See 38 U.S.C. § 5103A. This matter
    is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S.
    (2 Dall.) at 410, n. (“[M]any unfortunate and meritorious [veterans], whom Congress have justly
    thought proper objects of immediate relief, may suffer great distress, even by a short delay, and
    may be utterly ruined, by a long one.”).
    VIII.
    For the foregoing reason, the May 21, 2019, Board decision is SET ASIDE and the matter
    is REMANDED for readjudication.
    DATED: February 26, 2021
    Copies to:
    Chad A. MacIsaac, Esq.
    VA General Counsel (027)

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