holding that claimants are deemed to have knowledge of requirements of § 3.158(a) and that “abandonment pursuant to 38 C.F.R. § 3.158 (a) cannot be set aside or waived on grounds of alleged ignorance of regulatory requirements”
How later courts described this case
- holding that claimants are deemed to have knowledge of requirements of § 3.158(a) and that “abandonment pursuant to 38 C.F.R. § 3.158 (a) cannot be set aside or waived on grounds of alleged ignorance of regulatory requirements”
- holding that appellant abandoned his claim where he had failed to timely file NOD
- "The Supreme Court has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations." (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947))
- same; claimants deemed to have knowledge of requirements of section 3.158(a)
Written by the judges who cited it.
The opinion
KRAMER, Associate Judge,
concurring.
The majority states on page seven of the opinion that “[i]n the case at hand, appellant even though he may have been ignorant of the abandonment provisions of 38 C.F.R. § 3.158 (a), is necessarily charged with knowledge of the regulation.”
38 U.S.C. § 3003 (a) (1988) states as follows:
If a claimant’s application for benefits under the laws administered by the [VA] is incomplete, the [Secretary] shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no benefits may be paid or furnished by reason of such application.
From the literal language of § 3003(a), it is unclear whether or not a claimant has to be notified that necessary evidence must be received within one year and of the consequences of failure to do so. The versions of the implementing regulation in effect in both 1962 and 1979 specifically stated that the failure of the VA to furnish notice of the time limit for submission of evidence would not extend the one-year period. See 38 C.F.R. § 3.109 (b) (1962 & 1979). However, by amendment effective April 11, 1990, this provision was removed and replaced with procedures providing for the filing by the claimant for an extension of the one-year time limit for good cause shown and for appeal of a denial of a requested extension. See 38 C.F.R. § 3.109 (b) (1990). Consequently, under existing law, I believe that notification is required of both the one-year time limit and the consequences of failing to comply with it. Such a notification requirement is in accordance with the duty-to-assist doctrine embodied in 38 U.S.C. §§ 3007 (a), 241(b) (1988) as interpreted by this Court in Akles v. Derwinski, 1 Vet.App. 118 (1991). Moreover, the failure to provide such notice might raise serious constitutional issues. Cf. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir.1990) (notice of adverse decision on applicant’s Social Security disability claim, which does not clearly state that if no request for reconsideration is made then determination is final, violates claimant’s procedural due process rights); Cosby v. Ward, 843 F.2d 967 (7th Cir.1988) (when state fails to provide unemployment compensation recipients who are seeking ex *267 tended benefits with adequate notice of work search requirements and precise issues to be determined by claims adjudicators with respect to claimants’ eligibility to receive extended benefits as consequence of their work search, it violates their procedural due process rights); Christopher v. Secretary of Health and Human Services, 702 F.Supp. 41, 42-43 (N.D.N.Y.1989) (ambiguous notice to pro se Social Security disability applicant which could have misled her into believing that failure to request reconsideration would not have adverse effect on benefit determination made in future violates procedural due process); Butland v. Bowen, 673 F.Supp. 638, 640-42 (D.Mass.1987) (misleading notice of denial of claim which misinformed pro se Social Security applicant as to res judicata consequences of abandoning the claim violates procedural due process); Dealy v. Heckler, 616 F.Supp. 880 (D.Mo.1984) (misleading notice to pro se Social Security applicant, that she had right to file another claim at any time and which failed to inform her of res judicata effect of abandoned claim, violates procedural due process).
Interestingly, regardless of whether or not the YA in 1962 and 1979 was required to notify appellant of the time limit in which to submit necessary evidence and the consequences of not doing so, such notice was provided on both occasions. In a letter dated August 7, 1962, appellant was told that:
[The] evidence [of chronicity] must be received in the Veterans Administration within one year from the date of this letter; otherwise, benefits are not payable on the basis of this pending claim.
R. at 24 (emphasis added). Again, he was advised by letter dated September 18, 1979, that:
The evidence requested should be submitted as soon as possible, preferably within 60 days, and in any case it must be received in the Veterans Administration within one year from the date of this letter; otherwise, benefits, if entitlement is established, may not be paid prior to the date of its receipt.
R. at 36 (emphasis added). Therefore, lack of notice is not at issue in this case, not because appellant is deemed to know all relevant statutory and regulatory provisions without notice, but because he was consistently provided with adequate notice.