Veteranclaims’s Blog

January 10, 2022

Single Judge Application; Lang v. Wilkie; § 3.156(b); determination that is directly responsive to the new submission; In Lang v. Wilkie, the Federal Circuit held that when VA treatment records are created within 1 year of a VA benefits decision, those records are constructively before the benefits adjudicator. _ F.3d , , 2020 U.S. App. LEXIS 26271, at *10-12 (Fed. Cir. Aug. 19, 2020).; That holding is significant because if VA treatment records come into existence within 1 year of a decision, VA has an obligation to determine whether those records constitute new and material evidence and, if they do, the claim must be readjudicated.38 C.F.R. § 3.156(b) (2019).;The Federal Circuit has made clear that “under § 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.”Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014);

Filed under: Uncategorized — Tags: — veteranclaims @ 1:38 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-8309
LESTER B. DALE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Lester Dale served the Nation honorably in the United States
Marine Corps. In this appeal, which is timely and over which the Court has jurisdiction,1 he
contests an August 1, 2019, Board of Veterans’ Appeals decision that denied an effective date
before August 22, 2016, for a 50% disability rating for appellant’s service-connected sinusitis. 2
Because the Board’s decision did not account for a recent Federal Circuit decision that may affect
the matter on appeal, we will set aside the Board’s decision and remand this matter for further
proceedings.
I. ANALYSIS
In a January 1982 rating decision, VA granted appellant service connection for sinusitis
rated 10% disabling effective October 16, 1981.3 On several occasions over the years, appellant
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) at 5-19. The Board also denied a disability rating greater than 50% for sinusitis, compensable disability
ratings for loss of the senses of smell and taste, and effective dates earlier than August 22, 2016, for separate service
connection for the loss of the senses of smell and taste. Appellant expressly disclaimed an appeal as to these matters.
See Appellant’s Brief at 2. Therefore, we deem him to have abandoned appeals as to these matters. See Pederson v.
McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
3 R. at 966.
2
sought an increased disability rating for his sinusitis. Appellant sought one of these increases in
September 2012, when his rating was 30%.4 A regional office denied appellant an increased rating
claim in an April 2, 2013, rating decision.5 Appellant did not appeal the April 2013 rating decision.
Appellant again sought an increased disability rating for his sinusitis by submitting an
informal claim on August 22, 2016. It is this claim that led to the August 2019 Board decision on
appeal. The Board determined that appellant was not entitled to an effective date before August
22, 2016, for a 50% disability rating because that was the date on which appellant sought an
increased disability rating and no evidence showed an increase in the severity of his condition
within a year of seeking the increased rating.6 As part of its discussion, the Board noted the April
2013 rating decision and stated that because appellant had not filed an appeal, the decision was
final.7 And this is where we have a potential problem requiring remand.
In Lang v. Wilkie, the Federal Circuit held that when VA treatment records are created within 1 year of a VA benefits decision, those records are constructively before the benefits adjudicator. 8 That holding is significant because if VA treatment records come into existence within 1 year of a decision, VA has an obligation to determine whether those records constitute new and material evidence and, if they do, the claim must be readjudicated.9 The Federal Circuit
has made clear that “under § 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.”10

Lang appears to apply to appellant’s situation. As noted above, an April 2013 rating
decision denied appellant’s request for a disability rating greater than 30% for his sinusitis.11 A
few months later, on September 13, 2013, appellant underwent a CT scan of his sinuses at a VA
medical facility. 12 The examiner noted the following impression: “Severe nasal polyposis in
diffuse disease in the paranasal sinuses that has progressed slightly as compared with the previous
4 See R. at 615.
5 R. at 615-19.
6 R. at 13-14.
7 R. at 13.
8 _ F.3d , , 2020 U.S. App. LEXIS 26271, at *10-12 (Fed. Cir. Aug. 19, 2020). 9 38 C.F.R. § 3.156(b) (2019). 10 Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). 11 R. at 615-19. 12 R. at 333-34. 3 study.”13 Lang indicates that this medical record was constructively before the VA benefits adjudicator.14 This is so even if there is nothing to trigger the adjudicator’s knowledge that the record exists.15 And Beraud makes clear that because the record was created within 1 year of the April 2013 decision, until VA makes the determination required by § 3.156(b), the claim remains pending.16 On remand, the Board should consider Lang and Beraud and ensure that VA makes the assessment section 3.156(b) requires. Because the Court is remanding this matter to the Board for readjudication, the Court need not address any remaining arguments now, and appellant can present them to the Board. 17 On remand, appellant may submit additional evidence and argument and has 90 days to do so from the date of VA’s postremand notice.18 The Board must consider any such additional evidence or argument submitted.19 The Board must also proceed expeditiously.20 II. CONCLUSION After consideration of the parties’ briefs, the governing law, and the record, the Court SETS ASIDE the August 1, 2019, Board decision and REMANDS this matter for further proceedings consistent with this decision. DATED: September 14, 2020 Copies to: James G. Fausone, Esq. VA General Counsel (027) 13 R. at 334. 14 Lang, _ F.3d at __, 2020 U.S. App. LEXIS 26271, at *10-*12.
15 Id.
16 Beraud, 766 F.3d at 1407.
17 Best v. Principi, 15 Vet.App. 18, 20 (2001).
18 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
19 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
20 38 U.S.C. §§ 5109B, 7112.

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