Veteranclaims’s Blog

November 9, 2021

Single Judge Application; pause adjudication; Groves v. McDonough, 33 Vet.App. 368, 379 (2021) (recognizing that the Board must honor a claimant’s request to pause adjudication of his or her claim);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-7499
WILLIAM G. FENNELL, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, William G. Fennell, appeals through counsel an
October 8, 2020, Board of Veterans’ Appeals (Board) decision in which the Board denied an
increased disability rating for bilateral hearing loss, and denied service connection for a prostate
disability, a left knee disability, a kidney disability, and left ear skin cancer. Record (R.) at 5-20.1
This appeal is timely and single-judge disposition is appropriate when, as here, the issues
are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision
denying an increased rating for bilateral hearing loss, and denying service connection for a prostate
disability, a left knee disability, a kidney disability, and left ear cancer, and remand the matters for
further proceedings consistent with this decision.
I. BACKGROUND
Mr. Fennell served on active duty in the U.S. Army from July 1968 to March 1970. R. at

  1. He filed compensation claims for a kidney disability and hearing loss, R. at 3010, for left
    1 The Board also remanded the matter of service connection for an acquired psychiatric disability. The
    remanded matter is not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004); see also Howard v.
    Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).
    2
    ear skin cancer, R. at 2796, for a prostate disability, R. at 2584, and for a left knee disability, R. at
  2. A VA regional office (RO) denied the claims in various rating decisions in January 2016,
    R. at 2833-38, in December 2017, R. at 2607-09, and in January 2019, R. at 1872-74. Mr. Fennell
    disagreed with each denial. R. at 2805-06 (Oct. 2016 NOD on kidney disability and hearing loss),
    2586-87 (Oct. 2018 NOD on left ear skin cancer), 1864-65 (Jan. 2019 NOD on prostate and knee
    disabilities).
    In February 2020, Mr. Fennell submitted a request under the Privacy Act for a copy of his
    claims file, stating that “if applicable, we respectfully request that [the Board] hold the record open
    90 days from the date that the Claim[]s file is mailed to us. We shall presume that the request for
    the 90-day extension of time is automatically granted unless the Board issues us a letter stating
    otherwise.” R. at 130-31. In April 2020, the RO issued a Statement of the Case (SOC), continuing
    to deny his claims. R. at 72-106. 2 On May 28, 2020, the Board sent Mr. Fennell and his
    representative a letter responding to his motion for extension of time3 and identifying that in the
    motion, he stated “that an additional 90 days is needed to obtain and submit additional evidence
    and/or argument in support of this appeal.” R. at 31. The Board found good cause for a 90-day
    extension of time “to submit this additional evidence and/or argument in support of the appeal,”
    and informed Mr. Fennell that he had 90 days from the date of the Board’s letter, until August 19,
    2020, to submit any additional evidence or argument. Id. On August 27, 2020, the Board responded
    to Mr. Fennell’s Privacy Act request, informing him that the office had received his February 25,
    2020, request on August 27, 2020, and that they were providing him a copy of his entire VA
    electronic claims file. R. at 24. On October 8, 2020, the Board issued the decision on appeal. R. at
    5-20.
    On appeal, Mr. Fennell argues that the Board denied him fair process by deciding his appeal
    without either waiting the requested 90 days after the Board fulfilled his Privacy Act request or
    discussing why it did not hold the record open for the requested time. Appellant’s Brief (Br.) at 5-
    2 Though there is no Substantive Appeal in the record of proceedings, the Board waived any jurisdictional
    issue by deciding the issues on appeal. See Beyrle v. Brown, 9 Vet.App. 24, 28 (1996) (holding that even if there is no
    record evidence of a VA Form 9, when the Board reviews an appeal initiated by a timely NOD, the Board waives the
    filing of a Substantive Appeal).
    3 The Board noted that the motion for extension of time was dated May 5, 2020. It is unclear whether Mr.
    Fennell filed a motion on this date, but because the parties appear to agree that the Board’s May 2020 letter was in
    response to his February 25, 2020, Privacy Act request, the Court will not assume otherwise. See Secretary’s Br. at 6
    (arguing that the Board explicitly responded to Mr. Fennell’s request to hold open the record for 90 days from the date
    he received his claims file); Reply Br. at 1 (acknowledging that the Board responded to his extension request).
    3
  3. The Secretary responds that the Board did not violate fair process because the Board responded
    to Mr. Fennell’s request and granted an extension of time, although not the extension he requested,
    and the Board was not required to address its pre-adjudication decision on Mr. Fennell’s motion in
    its decision. Secretary’s Br. at 5-9. The Secretary asserts that Mr. Fennell fails to show prejudicial
    error in the Board’s denying his appeal before the requested period elapsed. Id. at 11, 14.
    II. ANALYSIS
    Appellants have a right to fair process in the development and adjudication of their claims
    and appeals before VA. Austin v. Brown, 6 Vet.App. 547, 551-52 (1994); Thurber v. Brown,
    5 Vet.App. 119, 122-26 (1993). This nonconstitutional right stems, in part, from the nature of the
    nonadversarial VA benefits adjudication system, which “is predicated upon a structure which
    provides for notice and an opportunity to be heard at virtually every step in the process.” Thurber,
    5 Vet.App. at 123; see Prickett v. Nicholson, 20 Vet.App. 370, 382 (2006) (explaining that the
    procedural right to fair process “is primarily based on the underlying concepts of the VA
    adjudicatory scheme, not the U.S. Constitution”), aff’d sub nom. Prickett v. Mansfield, 257 F.
    App’x 288 (Fed. Cir. 2007). “[E]ven in situations where no particular procedural process is
    required by statute or regulation, the principle of fair process may nonetheless require additional
    process if it is implicitly required when viewed against the underlying concepts of procedural
    regularity and basic fair play of the VA benefits adjudicatory system.” Smith v. Wilkie, 32 Vet.App.
    332, 337 (2020) (internal quotations omitted); accord Bryant v. Wilkie, 33 Vet.App. 43, 47 (2020)
    (“Once [the veteran] affirmatively notified the Board that he intended to submit additional
    argument . . . , basic principles of fair play, inherent in the VA benefits adjudication system in
    general . . . , required the Board to wait to issue its decision until the veteran either submitted the
    additional argument” or until the relevant period had elapsed.). The Court exercises de novo review
    over claimed legal errors. Butts v. Brown, 5 Vet.App. 532, 538 (1993) (en banc).
    Mr. Fennell argues on appeal that the Board violated his right to fair process by deciding
    his appeal without waiting the requested time for him to submit additional evidence or argument.
    Here, the Board found that Mr. Fennell had demonstrated good cause for an extension of time to
    submit additional evidence or argument. R. at 31. The parties appear to agree that the Board’s
    finding of good cause was in response to Mr. Fennell’s February 25, 2020, Privacy Act request,
    4
    asking to hold open the record until after he received a copy of his claims file. Secretary’s Br. at 6-
    8; Reply Br. at 1.
    But Mr. Fennell raises two issues over the timing of the Board’s actions that show that the
    Board violated his right to fair process. First, the Board granted his request to hold open the record
    for 90 days until August 19, 2020, finding good cause for doing so, but then did not act on Mr.
    Fennell’s Privacy Act request until August 27, 2020, after the 90-day period that the Board gave
    him to submit additional evidence had run. Reply Br. at 3; R. at 24 (noting that the Privacy Act
    office had obtained and fulfilled his February 25, 2020, request on August 27, 2020). Though the
    Board did not explain why it was not granting a 90-day period from the receipt of his claims file,
    if the Board was responding to Mr. Fennell’s February 25, 2020, request the Board knew he was
    waiting to receive his claims file before submitting the evidence or argument. The Board’s actions
    are contradictory, finding good cause to hold open the record for Mr. Fennell to obtain and review
    the contents of his claims file and submit additional evidence or argument, yet depriving him of
    the very opportunity he requested. See Bryant, 33 Vet.App. at 47.
    Second, the 90-day period that the Board gave Mr. Fennell to submit evidence or argument
    expired on August 19, 2020, R. at 31, before he ever received notice under 38 C.F.R. § 20.1304
    that he could submit additional evidence until the Board decided his appeal, R. at 23; Appellant’s
    Br. at 8. It is unclear how the Board could have limited Mr. Fennell’s time frame to submit evidence
    to a period before he had received notice under § 20.1304 that his appeal had been docketed at the
    Board. See DAV v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1353 (Fed. Cir. 2003) (noting that
    under § 20.1304(a) an appellant may submit additional evidence for a certain period after an appeal
    has been certified to the Board, and that under § 20.1304(b), the period may be extended by
    showing good cause).
    To be clear, the Court is not finding that Mr. Fennell could choose for himself when his
    time to submit additional evidence would expire. See Secretary’s Br. at 13. The unique series and
    timing of events that occurred in Mr. Fennell’s case–including the Board’s finding good cause to
    grant his request to delay adjudicating his claim for 90 days; the Board’s delay in fulfilling Mr.
    Fennell’s Privacy Act request despite knowing that he was waiting on the Board to send him his
    claims file before submitting such additional evidence or argument; and the Board’s adjudication
    of his claim less than 90 days after fulfilling his Privacy Act request–violated Mr. Fennell’s right
    to fair process. See Bryant, 33 Vet.App. at 48. The Board also acted without authority from Mr.
    5
    Fennell by adjudicating his claims before 90 days after fulfilling his Privacy Act request. See
    Groves v. McDonough, 33 Vet.App. 368, 379 (2021) (recognizing that the Board must honor a
    claimant’s request to pause adjudication of his or her claim)
    .
    The Court must consider whether the Board’s error prejudiced Mr. Fennell. See 38 U.S.C.
    § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”); Shinseki
    v. Sanders, 556 U.S. 396, 409 (2009) (explaining that the party attacking the agency’s
    determination bears the burden of showing an error is harmful). Mr. Fennell asserts that he
    intended to submit additional evidence or argument within 90 days after receiving his claims file
    and that the Board’s error was prejudicial because he and his representative were deprived of the
    requested time to review the record and adequately prepare his case. Appellant’s Br. at 3-4; Reply
    Br. at 3. The Board’s May 28, 2020, letter finding that Mr. Fennell requested an additional 90 days
    “to obtain and submit additional evidence and/or argument in support of [his] appeal” supports a
    finding of prejudicial error. R. at 31. The Board member found that Mr. Fennell intended to submit
    additional evidence or argument and the Court may not overturn this favorable factual finding. See
    Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (referencing 38 U.S.C. § 7261(a)(4); see also
    Roberson v. Principi, 17 Vet.App. 135, 139 (2003) (per curiam order).
    The Court thus cannot find that the error was not prejudicial. See Bryant, 33 Vet.App. at
    49-50 (finding prejudice where appellant asserted that he would have submitted argument and
    evidence if afforded the maximum time to do so). Accordingly, the Court will remand the appealed
    claims for the Board to provide Mr. Fennell with the process to which he was entitled. See 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.
    Because Mr. Fennell’s claims are being remanded, the Court need not, at this time, address
    the other arguments raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per
    curiam order) (holding that “[a] narrow decision preserves for the appellant an opportunity to argue
    those claimed errors before the Board at the readjudication, and, of course, before this Court in an
    appeal, should the Board rule against him”). On remand, the appellant is free to submit additional
    evidence and argument on the remanded matter, and the Board is required to consider any such
    relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky
    v. West, 12 Vet.App. 369, 372 (1999) (per curiam order). The Court has held that “[a] remand is
    6
    meant to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski,
    1 Vet.App. 394, 397 (1991). On remand, the Board must proceed expeditiously, in accordance
    with 38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment” of claims
    remanded by the Court).
    III. CONCLUSION
    After considering the foregoing analysis and the parties’ briefs, and after reviewing the
    record, the Court VACATES the part of the Board’s October 8, 2020, decision that denied an
    increased disability rating for bilateral hearing loss, and denied service connection for a prostate
    disability, a left knee disability, a kidney disability, and left ear cancer, and REMANDS the matters
    for further proceedings consistent with this decision.
    DATED: October 29, 2021
    Copies to:
    Michael S. Just, Esq.
    VA General Counsel (027)

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