Veteranclaims’s Blog

October 31, 2021

Single Judge Application; In Lang v. Wilkie, Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020) the Federal Circuit held that this Court properly exercised its discretion to consider for the first time on appeal whether a prior Agency decision was final under § 3.156(b), see Lang v. Wilkie at 1352; The Federal Circuit also found that, when a prior Agency decision remained pending, the Board erred in adjudicating whether that prior Agency decision contained CUE because only final decisions are subject to CUE review, Id.; see 38 C.F.R. § 3.105(a) (2021) (allowing CUE review of final decisions); And the Federal Circuit determined that Mr. Lang’s claim remained pending because VA had not yet determined whether postdecision evidence, received within the 1-year appeal window from the relevant RO decision, constituted new and material evidence under § 3.156(b), Lang, 971 F.3d at 1355; Thus, the Board could not adjudicate any CUE assertion related to that nonfinal RO decision, and this Court in Lang should have remanded for VA to address whether the postdecision evidence was new and material, Lang, 971 F.3d at 1355; § 3.156(b) applies only to legacy claims;

Filed under: Uncategorized — Tags: — veteranclaims @ 12:32 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2947
FREDERICK DAVIDSON, JR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LAURER, Judge: United States Army veteran Frederick Davidson, Jr., appeals, through
counsel, a January 7, 2020, Board of Veterans’ Appeals (Board) decision that found no clear and
unmistakable error (CUE) in a July 2013 rating decision that (1) granted an increased rating for
left lower extremity radiculopathy, effective April 16, 2012, and (2) did not address the issue of
secondary service connection for erectile dysfunction (ED).1
Appellant does not argue that the Board’s CUE discussion was flawed but rather that the
Board provided inadequate reasons or bases for its decision because it is unclear whether his
original October 2010 claim for benefits was ever finally decided.2 He asserts that his original
October 2010 claim remains pending because VA failed to fulfill its duty under 38 C.F.R. §
3.156(b).3 The Court agrees and will remand.
Appellant similarly contends that the Board erred by adjudicating whether there was CUE
in the July 2013 rating decision because VA failed to find a reasonably raised service connection
1 Record (R.) at 5-13.
2 Appella nt’s Brief (Br.) a t 1-2, 6-9.
3 Id. at 8-9.
2
claim for ED as secondary to his back disability.4 He maintains that the record reasonably raised
the ED claim, but VA never finally decided it, so the Board lacked jurisdiction to adjudicate CUE
on that basis.5 Because the Board did not make any findings on whether appellant or the record
reasonably raised an ED claim or whether VA ever adjudicated that claim, its statement of reasons
or bases proves inadequate. Thus, judicial review is frustrated, and the Court will remand.6
I. BACKGROUND
In October 2010, appellant filed a service connection claim for degenerative disc disease
(DDD).7 He completed a VA compensation and pension (C&P) exam in July 2011, where the
examiner diagnosed lumbosacral spine DDD and spinal stenosis and noted “[c]hronic mechanical
low back pain with lower extremity radicular symptoms specifically involving the left lower
extremity.”8 In August 2011, appellant attended a nerve testing exam that diagnosed “chronic L5-
S1 radiculopathy affecting the left lower extremity” and found no evidence of peripheral
neuropathy. 9 In September 2011, the VA regional office (RO) granted service connection for
lumbosacral DDD with a 10% rating and left lower extremity radiculopathy with a
noncompensable rating, effective October 29, 2010.10
In April 2012, appellant pursued an increased rating for his back condition, 11 and in June
2012, he completed another C&P exam.12 The June 2012 C&P examiner opined on the severity of
appellant’s DDD and radiculopathy and documented “problems with erectile dysfunction as well
as bowel urgency with rare incontinence” as pertinent neurological abnormalities or findings.13
Relying on this exam, the RO issued a July 2013 decision granting a 20% rating for left lower
4 Id. at 13-15.
5 Id.
6 See Allday v. Brown, 7 Vet.App. 517, 527 (1995).
7 R. at 3853.
8 R. at 3310.
9 R. at 3302.
10 R. at 3285.
11 R. at 3253.
12 R. at 3176-202. The parties’ briefs call this a July 2012 exam. The exam wa s signed in July 2012, but the
exam date was in June 2012.
13 R. at 3178, 3186.
3
extremity radiculopathy, a 20% rating for DDD, and service connection with a 10% rating for right
lower extremity radiculopathy.14 The RO assigned April 16, 2012, the date of appellant’s increased
rating claim, as the effective date for all three awards.15
In September 2018, appellant moved to revise the July 2013 rating decision based on
CUE.16 In that motion, he alleged that the RO committed CUE by assigning an effective date for
his additional benefits that reflected the date of his April 2012 claim, instead of the date of his
original October 2010 claim.17 He also alleged CUE in the July 2013 decision for failing adjudicate
a reasonably raised claim of ED secondary to his back condition.18 The RO found no CUE in the
July 2013 rating decision.19 Appellant sought direct review by the Board, which issued the January
7, 2020, decision on appeal.20
II. ANALYSIS
A. 38 C.F.R. § 3.156(b)
The Board found that there was no CUE in the July 2013 rating decision.21 To contest that
decision, appellant does not pursue his CUE allegation, but argues that his October 2010 claim
never became final because VA failed to fulfill its duty under 38 C.F.R. § 3.156(b). 22 The Court
agrees.
14 R. at 3151-55.
15 Id.
16 R. at 1815-16. The Court notes that appellant’s CUE motion references an August 1, 2013, rating decision,
while the rating decision cover sheet in the record of proceedings (ROP) reflects a July 29, 2013, date. R. at 1815,

  1. Both parties concede that the CUE motion referenced the same ra ting decision in the ROP. Appella nt’s Br. at
    3; Secreta ry’s Br. a t 3.
    17 Id.
    18 Id.
    19 R. at 610-12, 617-27.
    20 R. at 561, 5-13.
    21 R. at 5-13.
    22 Appella nt’s Br. a t 1-2.
    4
    At the outset, the Court acknowledges that the Board issued its decision under the Appeals
    Modernization Act (AMA),23 and that § 3.156(b) applies only to legacy claims.24 But appellant’s
    October 2010 claim and the September 2011 and July 2013 rating decisions at issue all predate the
    AMA’s February 19, 2019, effective date.
    For claims decided before February 19, 2019,25 the effective date for an award of VA
    disability compensation based on an original claim or a request to reopen a claim is generally the
    date that VA receives the claim or request or the date entitlement arose, whichever is later. 26
    Subject to certain exceptions, when VA properly notifies a claimant of its decision on his or her
    claim, that decision becomes final if not appealed.27
    VA regulations specify that, when VA receives new and material evidence within an appeal
    period or before an appellate decision, “[t]he effective date will be as though the former decision
    had not been rendered.” 28 Section 3.156(b) explains this further: “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. ”29 The U.S.
    Court of Appeals for the Federal Circuit (Federal Circuit) has held that § 3.156(b) requires VA to
    assess any evidence submitted during the relevant appeal period, even if no appeal is filed, and
    23 “The Veterans Appeals Improvement and Modernization Act of 2017 overhauled the process for appealing
    VA benefits decisions, including by creating different types of agency review and allowing claimants to select among
    those options.” See Pub. L. No. 115-55, 131 Stat. 1105, § 2 (codified as amended in scattered sections of 38 U.S.C.).
    24 38 C.F.R. § 3.156(b) (2021). Cla ims filed before the AMA system went into effect a re called “legacy
    a ppeals.” 38 C.F.R. § 3.2400(b) (2021); Godsey v. Wilkie, 31 Vet.App. 207, 214 n.2 (2019).
    25 Effective February 19, 2019, VA amended 38 C.F.R. § 3.400 to comply with the Veterans Appeals
    Improvement and Modernization Act of 2017. See Pub. L. No. 115-55, 131 Stat. 1105, § 2 (codified as amended in
    scattered sections of 38 U.S.C.). Effective February 19, 2019, claimants may no longer file to reopen a finally decided
    claim but may file a supplemental claim. 38 C.F.R. § 3.160 (2021); see 38 C.F.R. § 3.2501 (2021). But subsection (r),
    which governs effective dates based on reopened claims, remains in the post-AMA regulation, as these provisions
    apply to legacy claims, including, as relevant, those applications for benefits following the final disallowance of an
    earlier claim that was received by VA before February 19, 2019.
    26 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i) (2021); see Sutton v. Nicholson, 20 Vet.App. 419, 422
    (2006).
    27 38 C.F.R. § 20.1103 (2021); see 38 U.S.C. § 7105(c); see also Sutton, 20 Vet.App. at 425 (“In general, if
    a claim is denied by an RO, and the claimant does not file an NOD within one year, then [the] RO decision becomes
    final and unappealable by operation of law.”).
    28 38 C.F.R. § 3.400(q).
    29 38 C.F.R. § 3.156(b) (2021).
    5
    determine whether it constitutes new and material evidence relating to the claim. 30 If VA does not
    provide this assessment, the claim remains pending.31
    In Lang v. Wilkie, 32 the Federal Circuit held that this Court properly exercised its discretion to consider for the first time on appeal whether a prior Agency decision was final under § 3.156(b).33 The Federal Circuit also found that, when a prior Agency decision remained pending, the Board erred in adjudicating whether that prior Agency decision contained CUE because only final decisions are subject to CUE review.34 And the Federal Circuit determined that Mr. Lang’s claim remained pending because VA had not yet determined whether postdecision evidence, received within the 1-year appeal window from the relevant RO decision, constituted new and material evidence under § 3.156(b).35 Thus, the Board could not adjudicate any CUE assertion
    related to that nonfinal RO decision, and this Court in Lang should have remanded for VA to address whether the postdecision evidence was new and material.36

    Appellant contends that Lang controls this case and that, because his October 2010 claim
    remained pending, the Board erred in assessing whether the July 2013 rating decision contained
    CUE. 37 The Court notes that the Secretary appears to have misunderstood both appellant’s
    argument and the legal framework he cites.38 Thus, the Secretary’s counterargument is of limited
    aid. In any event, appellant’s argument is sound because his case is remarkably similar to Lang.
    30 Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).
    31 See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) (finding that if VA does not assess whether
    evidence submitted during the appeal period is new and material under § 3.156(b), the claim remains pending).
    32 Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020).
    33 Id. at 1352.
    34 Id.; see 38 C.F.R. § 3.105(a) (2021) (allowing CUE review of final decisions).
    35 Lang, 971 F.3d at 1355.
    36 Id.

    37 Appella nt’s Br. 6-9.
    38 The Secretary ignores the September 2011 rating decision and the fact that the RO received evidence within
    the appeal period in the form of the June 2012 C&P exam. Instead, his arguments center on the fact that the evidence
    preda ted the July 2013 ra ting decision. Secretary’s Br. a t 7 -9. But that fact is immaterial under § 3.156(b) because that
    decision did not discuss whether the evidence was new and material to the September 2011 decision, nor does the
    Secretary ever assert that it did. See Lang, 971 F.3d at 1355. While the Secretary curiously stated that the July 2013
    decision simply “subsumed” the September 2011 decision, he does so with no legal support , and the Court will not
    consider that undeveloped contention. Secretary’s Br. a t 8; Woehlaert v. Nicholson, 21 Vet.App. 456, 463 (2007)
    (“This Court has consistently held that it will not a ddress issues or arguments that counsel for the appellant fails to
    a dequately develop in his or her opening brief.”).
    6
    Here, the RO issued a decision in September 2011.39 Within 1 year, VA conducted a C&P
    exam concerning issues decided in the September 2011 decision.40 Based, in part, on that C&P
    exam, the RO issued a July 2013 rating decision.41 But within that decision, the RO did not make
    any finding on whether the June 2012 C&P exam was new and material evidence filed in
    connection with appellant’s October 2010 claim, nor has the Secretary cited any other RO decision
    addressing that issue. Thus, appellant’s October 2010 claim remains pending.42
    Appellant asks the Court to review de novo whether the evidence here was new and
    material and find that it was as a matter of law. 43 But the Court finds that such a threshold
    determination is inherently factual, and thus the Board must make it.44 Remand is the appropriate
    remedy when, as here, the Board has provided inadequate reasons or bases for its decision and
    more factfinding and weighing of the evidence are necessary to decide a claim.45 This also follows
    the Federal Circuit’s guidance where VA has failed to make the factual determination mandated
    by § 3.156(b).46
    Alternatively, appellant asks the Court to find that the Secretary’s brief conceded the
    materiality of the evidence. 47 The Court declines to do so. The Secretary’s argument was
    misfocused, and the Court cannot find the concession appellant seeks. The Secretary appears to
    39 R. at 3285.
    40 R. at 3176 (June 2012 C&P exam).
    41 R. at 3151.
    42 Beraud, 766 F.3d at 1407 (“[U]nder § 3.156(b), the VA must provide a determination that is directly
    responsive to the new submission and . . . until it does so, the claim at issue remains open.”).
    43 Appella nt’s Br. a t 10-13. The Court notes that appellant frames this argument as a request for reversal.
    Because the Board decision only considered the CUE issue and not § 3.156(b), the argument is better viewed simply
    as a request for the Court to make a de novo determination, which it will not do here.
    44 See Gilbert v. Derwinski, 1 Vet.App. 49 (1990); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir.
    2000) (“[A]ppella te tribunals a re not a ppropriate for initia l fact finding.”).
    45 See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (determining that the Board must support its
    determination with adequate reasons or bases that help appellant to understand the precise basis for its decision and
    fa cilita te this Court’s review); see also Deloach v. Shinseki, 704 F.3d 1370, 1380-81 (Fed. Cir. 2013); Tucker v. West,
    11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the Board has incorrectly applied
    the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is
    otherwise inadequate”).
    46 See Lang, 971 F.3d at 1355 (holding that this Court erred by not remanding the claim for the Board to
    review medical records for new and material evidence); Bond, 659 F.3d at 1369 (holding that remand was appropriate
    where VA failed to evaluate evidence received during the relevant period and failed to determine whether it was new
    and material).
    47 Appella nt’s Reply Br. at 1-2.
    7
    have stated that the RO considered the June 2012 C&P exam because it relied on that exam to
    issue the July 2013 rating decision.48 But the Secretary was not conceding that this evidence was
    material to a prior claim for the purpose of § 3.156(b).
    Because VA failed to determine whether the June 2012 C&P exam, received within 1 year
    of the September 2011 rating decision, was new and material evidence, the Court finds that
    appellant’s October 2010 claim remained pending.49 Because there was no final Agency decision,
    the Board erred by reviewing the July 2013 rating decision for CUE.50 Thus, the Court will vacate
    that part of the Board’s decision that found no CUE in a July 2013 rating decision that granted an
    increased rating for left lower extremity radiculopathy, effective April 16, 2012, and remand for
    VA to make the determination required by § 3.156(b).
    B. Erectile Dysfunction
    Appellant also argues that the Board erred by adjudicating whether there was CUE in the
    July 2013 rating decision for failure to find a reasonably raised claim for ED as secondary to his
    back disability.51 Appellant reasons that the record reasonably raised an ED claim but that VA
    never adjudicated it, so the Board lacked jurisdiction to adjudicate any theory of CUE. 52 The
    Secretary, once again, did not respond to appellant’s argument but defended the Board’s reasons
    or bases supporting its CUE adjudication.53
    VA must sympathetically read a claimant’s filings and adjudicate all issues and potential
    claims reasonably raised by the record.54 Although a claimant’s intent to apply for benefits is a
    48 Secreta ry’s Br. a t 8.
    49 Beraud, 766 F.3d at 1407.
    50 Lang, 971 F.3d at 1352.
    51 Appella nt’s Br. a t 13-15.
    52 Id.
    53 Secreta ry’s Br. a t 9-10.
    54 See Robinson v. Shinseki, 557 F.3d 1355, 1359-62 (Fed. Cir. 2009); see also Roberson v. Principi, 251
    F.3d 1378, 1384 (Fed. Cir. 2001) (holding that the Secretary must “determine all potential claims raised by the
    evidence, applying all relevant laws and regulations”); Suttman v. Brown, 5 Vet.App. 127, 132 (1993) (“In determining
    whether a particular claim has been raised, the [Board] must consider ‘all documents or oral testimony submitted prior
    to the [Board] decision’ and ‘review all issues which are reasonably raised from a liberal reading’ of such documents
    and oral testimony.”).
    8
    necessary element of any claim, including one reasonably raised by the record, 55 the Board must
    determine whether a claim was reasonably raised “in the context of the entire record.”56
    When reviewing a CUE allegation, the Board must first establish whether the rating
    decision was final because only final decisions are subject to CUE.57 If a claimant alleges CUE in
    a prior decision based on the failure to adjudicate a reasonably raised claim, the Board must
    determine in the first instance whether appellant or the record reasonably raised a claim.58 The
    Board must then determine whether any Agency decision ever addressed the substance of the claim
    so that the claimant “could deduce that the claim was adjudicated.”59 If so, then the claimant may
    challenge the resulting decision through CUE.60 If not, then the claim remains pending, and the
    Board may not review the later decision for CUE related to that claim.61
    The Board analyzed whether there was CUE in the July 2013 rating decision for failing to
    find a reasonably raised claim for ED.62 But it never discussed whether appellant or the record
    reasonably raised a claim for ED in the first instance, nor did it address whether VA ever
    adjudicated that claim. Without those factual findings, the Court cannot determine whether the
    Board had jurisdiction to adjudicate a CUE motion.63 Thus, the reasons or bases that the Board
    provided for its decision do not facilitate this Court’s review, rendering them inadequate.64
    55 See Criswell v. Nicholson, 20 Vet.App. 501, 503-04 (2006).
    56 Coker v. Nicholson, 19 Vet.App. 439, 441 (2006), vacated on other grounds sub nom. Coker v. Peake, 310
    F. App’x 371 (Fed. Cir. 2008); see Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (finding that the veteran’s original
    claim for a foot condition reasonably included a claim for hallux valgus); Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009)
    (holding that VA must construe a service connection claim to include any disability that may reasonably be
    encompassed by the claimant’s description of the claim, the symptoms the claimant describes, and the information the
    claimant submits or the Secretary obtains in support of the claim); Ephraim v. Brown, 5 Vet.App. 549, 553 (1993)
    (holding that VA is “required to consider the veteran’s entitlement, on any basis consistent with the claim, to any
    benefit which could flow from a determination of service connection and to which entitlement is reasonably raised on
    the record”).
    57 Lang, 971 F.3d at 1352; see 38 C.F.R. § 3.105(a).
    58 Richardson v. Nicholson, 20 Vet.App. 64, 71-72 (2006); see Ingram v. Nicholson, 21 Vet.App. 232 (2007).
    59 Ingram, 21 Vet.App. at 243.
    60 Id.; see also Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), reh’g and reh’g en banc denied (Dec.
    5, 2006).
    61 Ingram, 21 Vet.App. at 243; see also Lang, 971 F.3d at 1352.
    62 R. at 5-13.
    63 See Allday, 7 Vet.App. at 527.
    64 Id.
    9
    When the Board discussed whether appellant or the record ever raised an ED claim, it did
    so only in the CUE context and applied uniquely high standards that only apply to CUE.65 On
    remand, the Board must answer whether the record, at the time of the July 2013 decision,
    reasonably raised a service connection claim for ED, to include as secondary to appellant’s back
    disability, and whether VA adjudicated that claim. In doing so, the Board must give a full and
    sympathetic reading to appellant’s pro se submissions66 and consider the context of the entire
    record.67
    II. CONCLUSION
    For these reasons, the Court SETS ASIDE the Board’s January 7, 2020, decision and
    REMANDS for readjudication and further development.
    DATED: October 13, 2021
    Copies to:
    Kenneth H. Dojaquez, Esq.
    VA General Counsel (027)
    65 R. at 12.
    66 The Court notes that appellant was proceeding pro se when he filed his original claim for benefits and
    when the RO issued the July 2013 rating decision.
    67 Roberson, 251 F.3d at 1384.

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