Veteranclaims’s Blog

February 24, 2020

Single Judge Application; 1970 30 day notice letter violated § 3.158(a), which provided a 1-year window to submit the requested evidence; Presumption of Regularity;

Excerpt from decision below:

” In our May 2017 decision, the Court concluded that the Board failed to acknowledge that the April 1970 notice letter contained misleading information because it informed Mr. Estes that he had 30 days to submit the requested information in contravention of § 3.158(a), which provided a 1-year window to submit the requested evidence. R. at 128; see 38 C.F.R. § 3.158(a). However,
the Court noted that, to warrant an earlier effective date based on misleading notice, “Mr. Estes ‘must also demonstrate that he relied to his detriment on the misleading notice.'” R. at 128 (quoting Noah v. McDonald, 28 Vet.App. 120, 132 (2016)).
Upon readjudication, the Board recounted the Court’s analysis, but noted that “the burden of demonstrating detrimental reliance is on the veteran.” R. at 20. In this regard, the Board noted that Mr. Estes had not demonstrated detrimental reliance and, in fact, found “the claim[s] file [] devoid of such an argument.” R. at 21.
Both parties agree that the Board erred because it failed to address statements contained in the record proffered by Mr. Estes suggesting that he relied on the April 1970 notice letter to his
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detriment. Appellant’s Brief (Br.) at 12; Secretary’s Br. at 6-7 (both citing R. at 1358, 2215, 3124).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 18-2946
JAMES L. ESTES, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran James L. Estes appeals through counsel a February 13, 2018, Board of Veterans’ Appeals (Board) decision that denied entitlement to an effective date earlier than February 21, 2001, for the award of service connection for chloracne of the back, buttocks, and scrotum. Record (R.) at 2-27.1 For the reasons that follow, the Court will set aside the February 2018 Board decision and remand the matter for readjudication consistent with this decision.
1 In the same decision, the Board granted the earlier effective date of February 21, 2001, for the award of service connection for chloracne. R. at 6, 18-24. Because this determination is favorable to Mr. Estes, the Court will
not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings
of fact favorable to a claimant made by the Board pursuant to its statutory authority.”). In addition, the Board denied
entitlement to a higher schedular disability evaluation for chloracne in excess of 30% prior to July 31, 2012, and in
excess of 50% thereafter. R. at 5-18. Because Mr. Estes has not challenged these portions of the Board decision, the
appeal as to those matters will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc)
(declining to review the merits of an issue not argued and dismissing that portion of the appeal); Cacciola v. Gibson,
27 Vet.App. 45, 48 (2014) (same). Finally, the Board remanded the issue of entitlement to an extraschedular evaluation
for chloracne and a total disability evaluation based on individual employability (TDIU). R. at 24-27. Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider these issues at this time. See Howard v. Gober, 220 F.3d 1341, 1334 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2019).
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I. FACTS
Mr. Estes served honorably in the U.S. Army from April 1968 to December 1969, including service in the Republic of Vietnam. R. at 4104. In January 1970, he filed a claim for service
connection for pustular acne. R. at 4028-31. At that time, he indicated that he received treatment
for pustular acne at the 96th Evacuation Hospital in Vietnam. R. at 4029. In a letter dated April
10, 1970, a VA regional office (RO) informed Mr. Estes of the following:
Upon receipt of your application for compensation[,] we made an inquiry to the
Service Department for your service medical records.
We have been advised by the Service Department that they are unable to identify
the 96th Evacuation Hospital in Viet[n]am. If you were treated at another medical
facility, please furnish dates and places of treatment and we will make further effort
to obtain your service medical records.
Please let us have this information within the next thirty days as no further action
can be taken on your claim until this is received.
R. at 3991. A VA Form 21-523 (“Disallowance”) date stamped May 12, 1970, indicates that the
RO disallowed the claim for “failure to furnish [the] requested evidence.” R. at 3987 (capitalization
altered).
On February 21, 2001, Mr. Estes filed a claim for service-connected compensation, listing,
as relevant, “skin cancer” and “Agent Orange” as the nature of the diseases being claimed and
noting that he was treated for severe pustular acne during service. R. at 3965-69. In an October
2002 decision, the RO granted service connection for chloracne.2,3 R. at 3819-21, 3826-29.
Following an appeal to the Board and then to this Court regarding the proper disability
evaluation assigned for chloracne, in October 2007 the parties entered into a joint motion to
terminate the appeal, R. at 3435-43, which, as characterized by the Board, reserved Mr. Estes’s
ability to pursue an earlier effective date for the award of service connection, R. at 3, 912. In
subsequent statements, Mr. Estes, through counsel, argued that the proper effective date for the
award of service connection should be 1970, consistent with his original claim for service
2 The RO assigned September 25, 2001, as the effective date for the award of service connection, R. at 3827-
29; however, as discussed above, supra n.1, the Board awarded the earlier effective date of February 21, 2001, R. at
6.
3 The RO specifically awarded service connection for “chloracne, with large cysts on [the] back,” R. at 3827,
but in an October 2003 RO decision, the disability was recharacterized as “chloracne of the back, buttocks, and
scrotum,” R. at 3765.
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connection. R. at 1300-02, 3351, 3399; see R. at 1358, 2215, 3124. He specifically argued that the
1970 claim remained pending and unadjudicated. R. at 3351, 1300-02; see R. at 2276 (February
2011 statement indicating that, although he filed a claim in January 1970, he was never examined
by a VA physician and received no correspondence from VA).
In a June 2015 decision, the Board denied entitlement to an earlier effective date, finding
that Mr. Estes “abandoned his January 1970 claim for service connection for acne when he failed
to respond to an RO letter request[ing] certain records.” R. at 914. Relying on 38 C.F.R.
§ 3.158(a),4 the Board determined that Mr. Estes failed to respond to the RO’s request for additional records within one year. R. at 931. The Board determined that, “[t]herefore[,] he abandoned his
original claim for service connection and was issued a disallowance based upon this failure to
provide records in May 1970.” Id.
Mr. Estes then appealed the June 2015 Board decision to this Court. In a May 2017
memorandum decision, the Court set aside the June 2015 Board decision, concluding that the
Board failed to provide adequate reasons or bases for finding both that Mr. Estes abandoned his
claim following the April 1970 notice letter and that the May 1970 disallowance constituted a final
decision. R. at 124-30; see Estes v. Shulkin, No. 15-3690, 2017 WL 2198082 (Vet. App. May 18,
2017).
In the February 2018 decision on appeal, the Board denied entitlement to an effective date
earlier than February 21, 2001, for the award of service connection for chloracne, again finding
that Mr. Estes “abandoned his January 1970 claim for service connection for acne when he failed to respond to the April 1970 notice letter requesting evidence.” R. at 5. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Estes’s appeal is timely and the Court has jurisdiction to review the February 2018 Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
4 “[W]here evidence requested in connection with an initial claim . . . is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received.” 38 C.F.R. § 3.158(a) (2019).
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The Board’s determination of the effective date for disability compensation for a serviceconnected
disability is a finding of fact that the Court reviews under the “clearly erroneous”
standard of review. See Evans v. West, 12 Vet.App. 396, 401 (1999); Hanson v. Brown, 9 Vet.App.
29, 32 (1996); see also 38 U.S.C. § 7261(a)(4). “A factual finding ‘is “clearly erroneous” when
although there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App.
91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 38 U.S.C. § 7104(d)(1); Pederson, 27 Vet.App. at 286; Allday v. Brown, 7 Vet.App. 517,
527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement,
the Board must analyze the credibility and probative value of evidence, account for evidence it
finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table).
III. ANALYSIS
A. April 1970 Notice Letter
In our May 2017 decision, the Court concluded that the Board failed to acknowledge that the April 1970 notice letter contained misleading information because it informed Mr. Estes that he had 30 days to submit the requested information in contravention of § 3.158(a), which provided a 1-year window to submit the requested evidence. R. at 128; see 38 C.F.R. § 3.158(a). However,
the Court noted that, to warrant an earlier effective date based on misleading notice, “Mr. Estes ‘must also demonstrate that he relied to his detriment on the misleading notice.'” R. at 128 (quoting Noah v. McDonald, 28 Vet.App. 120, 132 (2016)).
Upon readjudication, the Board recounted the Court’s analysis, but noted that “the burden of demonstrating detrimental reliance is on the [v]eteran.” R. at 20. In this regard, the Board noted that Mr. Estes had not demonstrated detrimental reliance and, in fact, found “the claim[s] file [] devoid of such an argument.” R. at 21.
Both parties agree that the Board erred because it failed to address statements contained in the record proffered by Mr. Estes suggesting that he relied on the April 1970 notice letter to his
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detriment. Appellant’s Brief (Br.) at 12; Secretary’s Br. at 6-7 (both citing R. at 1358, 2215, 3124).

The Court agrees with the parties that the Board erred in this regard, as the statements identified
by the parties are statements made by Mr. Estes in which he expressly indicated that he relied on
the April 1970 letter and believed his claim was denied. See R. at 1358 (February 2014 statement:
“I filed my [first] claim in Jan. 1970. . . . I was not given a physical [and] didn’t see a doctor. They
just stamped it denied [and] gave it back to me.”), 2215 (July 2012 statement: “[W]hen I got back
to the USA and out of the Army[,] I went to [the] VA to apply for benefits for Agent Orange and
was promptly denied.”), 3124 (February 2010 statement: “I applied for V.A. benefits in January
1970 and was denied [right] away.”). The Court notes that the Board discussed the February 2010
statement as reflective of evidence that he received the April 1970 notice letter, thereby supporting
its contention that the presumption of regularity applied, but not in the context of determining
whether it was reflective of Mr. Estes’s detrimental reliance. See R. at 22. The Board’s failure to
address these relevant statements renders its reasons or bases inadequate.
B. Presumption of Regularity
In our May 2017 decision, the Court concluded that the Board failed to adequately explain how it determined that the presumption of regularity “had not been rebutted as there [was] no indication that Mr. Estes [] receive[d] notice of the May 1970” disallowance. R. at 128 (internal quotation removed). The Court described apparent irregularities in the May 1970 disallowance and noted that, “[b]ecause the Board made no findings in this regard, judicial review [was] frustrated.” R. at 129.
Upon readjudication, the Board again found that the presumption of regularity attached to the May 1970 disallowance. R. at 21-23. The Board determined that what the Court identified as apparent irregularities—namely the lack of any indication that the disallowance was sent to Mr. Estes—were not irregularities because the disallowance was a record document only and not intended to be mailed to Mr. Estes. R. at 22. The Board indicated that the April 1970 notice letter,
which it found had been received by Mr. Estes, id. (referring to R. at 3124), told him to submit additional information within 30 days and “[t]he May 1970 form simply recorded the passage of time of the [30] days [he] was given to produce the requested evidence . . . and documented the disallowance.” Id. In essence, the Board found that the RO need not have notified Mr. Estes of the
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May 1970 disallowance because it had already informed him, via its April 1970 letter, that no further action would be taken on his claim unless he submitted the requested records.
Both parties agree that the Board erred because it failed to consider the Court’s conclusion that the April 1970 notice letter was misleading and in conflict with § 3.158(a). Appellant’s Br. at
21-22; Secretary’s Br. at 7. The Court agrees. The Board’s presumption of regularity analysis
focuses exclusively on the May 1970 disallowance, but overlooks the irregularities noted by Court
regarding the April 1970 notice letter, namely, that it provided a 30-day response window despite
the 1-year window provided in § 3.168(a)
. See R. at 127-28. Although the Board noted that the
Court in May 2017 determined that the April 1970 notice letter was misleading, it failed to consider
whether the misleading nature of the letter was sufficient to rebut the presumption of regularity.
C. Remedy
Mr. Estes argues that the proper remedy for the foregoing errors is to reverse the Board
decision and determine that he detrimentally relied on the misleading April 1970 notice letter,
resulting in a pending and unadjudicated claim. Appellant’s Br. at 22-30. However, the Court
concludes that remand is appropriate in this case because the Board provided inadequate reasons
or bases for its decision. 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”).
Mr. Estes asserts that the “Board ‘has performed the necessary fact-finding and explicitly
weighed the evidence,'” Appellant’s Br. at 28 (quoting Deloach v. Shinseki, 704 F.3d 1370, 1380
(Fed. Cir. 2013) (explaining that reversal is appropriate only when “the Board has performed the
necessary fact-finding and explicitly weighed the evidence” and the Court, “on the entire evidence,
[] is left with the definite and firm conviction that a mistake has been committed”)). However, as
both parties acknowledge, the Board failed to consider Mr. Estes’s statements regarding his
reliance on the April 1970 notice letter. Appellant’s Br. at 12; Secretary’s Br. at 8. Because
additional factfinding and evaluation of the evidence addressing whether Mr. Estes detrimentally
relied on the April 1970 notice letter are necessary to make a decision on the claim, remand, not
reversal, is the proper remedy in this case. See Deloach, 704 F.3d at 1380; Bankhead v. Shulkin,
29 Vet.App. 10, 23 (2017); see also Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000)
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(noting that “appellate tribunals are not appropriate fora for initial fact finding” and that a remand
is appropriate if the lower adjudicative body “failed to make findings of fact essential to the
decision”).
On remand, Mr. Estes is free to submit additional arguments and evidence, including the
arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or
argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the
Board that “[a] remand is meant to entail a critical examination of the justification for the [Board’s]
decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an
expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
Upon consideration of the foregoing, the appealed portion of the February 13, 2018, Board
decision is SET ASIDE and the matter is REMANDED for readjudication consistent with this
decision. The balance of the appeal is DISMISSED.
DATED: February 21, 2020
Copies to:
Emily S. Walger, Esq.
VA General Counsel (027)

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