Betzaida P. Jernigan v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 10-1226

BETZAIDA P. JERNIGAN, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued March 28, 2012 Decided June 19, 2012)

David J. Lowenstein, of Richmond, VA, with whom Todd M. Wesche, formerly of Arlington,

VA, was on the brief, was on the pleading for the appellant. Mr. Lowenstein argued before the

Court.

Mark D. Vichich, of Washington, D.C., with whom Will A. Gunn, General Counsel; R.

Randall Campbell, Assistant General Counsel; and David L. Quinn, Deputy Assistant General

Counsel, all of Washington, D.C, were on the brief, was on the pleading for the appellee. Mr.

Vichich argued before the Court.

Before HAGEL, DAVIS, and SCHOELEN, Judges.

HAGEL, Judge: Betzaida P. Jernigan appeals through counsel a March 23, 2010, Board of

Veterans' Appeals (Board) decision that denied entitlement to an effective date earlier than October

31, 2001, for the award of VA disability benefits for gastroesophageal reflux disease, a lumbosacral

strain, and an appendectomy scar.1 Ms. Jernigan's Notice of Appeal was timely and the Court has

jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). This matter was referred

to a panel of the Court to determine whether the timing requirement in 38 C.F.R. § 3.155(a) (1995)

1

The Board also remanded claims for benefits for a right shoulder disability, labyrinthitis with vertigo, and

tension headaches, as well as the issue of entitlement to an earlier effective date for the award of a total disability rating

based on individual unemployability. Accordingly, those matters are not before the Court at this time. See 38 U.S.C.

§ 7266 (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344

(Fed. Cir. 2000) (Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)

(1999))).

within which a veteran must submit a formal application form was a valid exercise of the Secretary's

rulemaking authority and whether the Secretary has a duty to notify claimants of that timing

requirement. For the reasons set forth below, the Court will affirm the March 2010 Board decision.

I. FACTS

Ms. Jernigan served on active duty in the U.S. Navy from April 1989 to May 1995.

In July 1995, Ms. Jernigan submitted a VA Form 21-4138, Statement in Support of Claim,

in which she stated that she suffered from, among other conditions, back, spinal, and stomach

disabilities. On that form, Ms. Jernigan included her full name, Social Security number, and mailing

address. She also enclosed several service medical records in support of her claims that indicated

that she served in the Navy. In an August 1995 letter, VA responded. The relevant paragraphs of

the letter read:

Please note the paragraph(s) checked below: IGNORE ANY PARAGRAPH NOT

CHECKED.

G 1. The evidence requested below should be submitted as soon as possible,

preferably within 60 days, and in any case it must be received in the VA 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.

} a. The enclosed form(s) should be completed and returned to this

office so that further action may be taken on your claim.

Record (R.) at 2185. Only paragraph 1a was checked. The letter indicated that "1-526" was

enclosed; Form 1-526 (now Form 21-526) was VA's formal application form.2

After more than six years of silence, in October 2001 Ms. Jernigan submitted a completed

VA Form 21-526, Veteran's Application for Compensation or Pension, seeking disability benefits

for, among other conditions, back and stomach disabilities. In a statement submitted with the

application, Ms. Jernigan wrote:

2

Although frequently used both by VA and the Court, the term "formal claim" is not defined by statute or

regulation. As far as the Court can determine, the use of this term flows from 38 C.F.R. § 3.160(b), which defines an

"original claim" as "An initial formal application on a form prescribed by the Secretary," and referring to 39 C.F.R.

§§ 3.151 (Claims for disability benefits) and 3.152 (Claims for death benefits). See also Norris v. West, 12 Vet. App.

413, 416 (1999) ("A formal claim is one that has been filed in the form prescribed by the Secretary.").

2

I previously filed a claim for compensation at time of discharge. The [veterans

service organization] officer assisted with this claim. However[,] VA sent claim

back paperwork requesting additional forms be filled out. (See attached original

paperwork sent in along with 5 pages of [service medical records]). I again request

consideration for compensation for my back [and] . . . stomach condition[s] . . . . I am

now enclosing VA [Form] 21-526 along with the original papers from 1995.

R. at 2171. Ms. Jernigan's application was submitted with a letter from her authorized representative

that stated, "Please accept the attached material as an original application for benefits." R. at 2169.

In July 2002, a VA regional office granted disability benefits for gastroesophageal reflux

disease, chronic lumbosacral strain, and residuals of an appendectomy scar, all effective as of

October 31, 2001, the date VA received Ms. Jernigan's completed Form 21-526, which it treated as

an original claim for benefits. Ms. Jernigan filed a Notice of Disagreement with the effective dates

assigned. She asserted:

I submitted an informal claim on a [Form] 21-4138 on July 21, 1995, which was

received in the [regional office] on July 31, 1995. Subsequent to VA receiving the

documents, VA returned all original claim documents to me, with no letter of

explanation. I contend that specific error[s] of fact or law in the process of the

recording of my claim . . . and failure of the VA to notify me of further action

required, were made.

R. at 1895. She ultimately appealed to the Board.

In March 2010, the Board issued the decision on appeal. The Board determined that, as a

matter of law, an effective date prior to October 31, 2001, could not be awarded. Specifically, the

Board relied on the combination of 38 U.S.C. § 5101(a) and 38 C.F.R. §§ 3.151(a) and 3.155(a) to

conclude that, because Ms. Jernigan did not return the formal application form to establish her

original claim, see 38 C.F.R. § 3.160(b), within one year of August 1995, the earliest possible

effective date for her disability benefits was the date of her properly filed original claim, October 31,

2001.

In her briefs, Ms. Jernigan argued that (1) the requirement in 38 C.F.R. § 3.155(a) that she

return the formal application form within one year of receiving it was not in accordance with the law

and should be struck down; (2) there is no substantive necessity to file a claim on a particular form;

and (3) VA violated her right to due process when it failed to inform her of the time limit to return

the form and the consequences for failing to do so. At oral argument, however, Ms. Jernigan framed

3

the issues as: "What is the proper effective date" for her award of benefits and "What is an

application?" She conceded that she received VA's August 1995 letter with Form 1-526 attached

and did not dispute that she did not return the form to VA within one year of receiving it. At oral

argument, neither party raised or discussed due process or the Secretary's authority to implement a

time limit in § 3.155(a).

II. ANALYSIS

A. Form and Timing of Claim

The effective date for an award of compensation benefits is the date of VA's receipt of the

application or the date entitlement to the benefit arose, whichever is later. 38 U.S.C. § 5110(a);3

38 C.F.R. § 3.157(a) (2011). VA defines "Claim–Application" as "a formal or informal

communication in writing requesting a determination of entitlement or evidencing a belief in

entitlement, to a benefit." 38 C.F.R. § 3.1(p) (1995).4 The parties agree that Mrs. Jernigan's July

1995 submission was an informal claim. "Upon receipt of an informal claim, if a formal claim has

not been filed, an application form will be forwarded to the claimant for execution. If received

within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of

receipt of the informal claim." 38 C.F.R. § 3.155(a) (2011). This means that, where a claimant

submits an informal claim and then submits the formal application form required by VA within one

year of receiving it, if benefits are granted as a result of the claim, the effective date for payment of

benefits will be the date VA received the informal claim.

1. Necessity of Formal Application Form

To the extent that Ms. Jernigan wishes to stand on the argument in her brief that no formal

application form is required, the Court finds this assertion unpersuasive. Congress granted the

Secretary the authority "to prescribe all rules and regulations which are necessary or appropriate to

3

Specifically, section 5110(a) provides:

Unless specifically provided otherwise in this chapter, the effective date of an award based on an

original claim, a claim reopened after final adjudication, or a claim for increase, of compensation,

dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts

found, but shall not be earlier than the date of receipt of application therefor.

4

This regulation remains unchanged.

4

carry out the laws administered by [VA] and are consistent with those laws, including . . . the forms

of application by claimants under such laws." 38 U.S.C. § 501(a)(2). Congress also provided that

"[a] specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to

be paid or furnished to any individual under the laws administered by the Secretary." 38 U.S.C.

§ 5101(a). The Secretary's interpretation of those statutes as requiring a formal application form has

long been accepted by the Court because the form contains particular features that informal claims

typically do not. See Fleshman v. Brown, 9 Vet.App. 548, 551 (1996) (stating that the certification

and execution requirement contained in the formal application form "is an essential element of the

form prescribed by the Secretary and affords evidentiary significance to the statements contained on

the application and serves as a release to allow VA to obtain the applicant's medical records"). To

the extent that no formal finding has been made that the Secretary's interpretation of sections

501(a)(2) and 5101(a), contained in § 3.155(a), as requiring that VA receive a formal application

form before benefits may be paid is a valid exercise of the Secretary's rulemaking authority, we make

such a finding today.5, 6 See Mayo Foundation for Medical Educ. and Research v. United States,

5

This holding should not be construed as overruling prior cases in which the Court has determined that a formal

application form was not required. See, e.g., Quarles v. Derwinski, 3 Vet.App. 129, 137 (1992) (holding that, where VA

never sent the claimant a formal application form pursuant to § 3.155, the one-year time period to return it could not have

begun to run and therefore the effective date of the claim was the date of the informal claim).

Similarly, our holding does not affect claims filed in situations in which the Secretary's own regulations specify

that the formal application form contemplated by § 3.155(a) is not necessary. See, e.g., Norris, 12 Vet.App. at 417

(holding that, where the claimant was already service-connected for a psychiatric disability and a medical record

indicated that his conditioned worsened, no formal application for a total disability rating based on individual

unemployability was required because (1) a total disability rating based on individual unemployability is simply another

way to get a 100% rating and (2) § 3.157(a) provides that medical examinations that show a worsening of an already

service-connected condition are themselves informal claims for increases); 38 C.F.R. § 3.154 ("VA may accept as a claim

for benefits under 38 U.S.C. § 1151 . . . any communication in writing indicating an intent to file a claim . . . under the

laws governing entitlement to veterans' benefits for disability or death due to VA hospital care, medical or surgical

treatment, examination, training and rehabilitation services, or compensated work therapy program, whether such

communication is contained in a formal claim . . . or in any other document.").

6

The Court acknowledges that there may be instances in which VA has acted on informal claims and granted

benefits without a formal application ever being filed. However, the question raised by this case is whether VA's

requiring a formal application form is a valid exercise of the Secretary's rulemaking authority. We hold that it is. If VA

opts in some cases to treat informal claims as de facto applications, that is consistent with a veteran-friendly mandate

and should be encouraged when possible (such as when a veteran is otherwise diligently pursuing his claim, unlike Ms.

Jernigan). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (stating that "[t]his court and the Supreme Court

both have long recognized that the character of the veterans' benefits statutes is strongly and uniquely pro-claimant" and

describing "the historically non-adversarial system of awarding benefits to veterans"); Trilles v. West, 13 Vet.App. 314,

326 (2000) (en banc) (describing "the VA pro-claimant nonadversarial claims adjudication process"). If VA opts not

to, however, the statute and regulation do not permit the Court to force VA to do so.

5

131 S. Ct. 704, 711 (2011) (Mayo Foundation) (holding that, under Chevron U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837 (1984), courts "may not disturb an agency rule unless it is

'arbitrary or capricious in substance, or manifestly contrary to the statute'").

2. Timing and Effect of Return of Formal Application Form

a. Timing

In her briefs, Ms. Jernigan argues that, even if a formal application form is required, there

is no statutory basis for the Secretary's one-year timeframe within which to return the formal

application form created by § 3.155(a).

As briefly alluded to above, when an agency, through a formally promulgated regulation,

interprets a statute it is charged with administering, judicial review of that interpretation is governed

by the two-step inquiry articulated by the Supreme Court in Chevron. Under Chevron, the court

must first determine "whether Congress has directly spoken to the precise question at issue."

467 U.S. at 842. If Congress has, "that is the end of the matter," and the only question remaining is

whether the regulation at issue is in accordance with congressional intent. Id. at 842-43. Although,

section 5103 (1995) stated that "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" Congress did

not directly speak to the timing of an application for benefits in sections 501(a)(2) and 5101(a).

Where, as here, Congress has not directly spoken to the precise issue, there is a "gap" for the

agency to fill. See Gallegos v. Principi, 283 F.3d 1309, 1312 (Fed. Cir. 2002). In this second step

of the Chevron inquiry, courts may not disturb an agency rule unless it is "arbitrary or capricious in

substance, or manifestly contrary to the statute." Mayo Foundation, 131 S. Ct. at 711. Instead,

courts will defer to an agency's "reasonable interpretation" of the statute. Id. at 714; Gallegos,

283 F.3d at 1312. Here, the question is this: Is the Secretary's creation of a time limit to file a formal

application form a reasonable interpretation of Congress's direction that VA prescribe the "form" in

which applications for benefits may be made? We hold that it is.

"Form" has several definitions, but for these purposes, the Court finds that the most

appropriate definition is, "[e]stablished behavior or procedure, usu[ally] according to custom or

6

rule." BLACK'S LAW DICTIONARY 723 (9th ed. 2004) [hereinafter BLACK'S].7 Under this definition,

it is eminently reasonable to interpret "form"–that is, the procedure for filing an application for

benefits–to include a timing requirement, particularly in the context of VA, where finality often plays

a crucial role. See 38 U.S.C. §§ 7105(b)(1), (c) ("[A] notice of disagreement shall be filed within

one year from the date of mailing of notice of the result of initial review or determination. . . ." "If

no notice of disagreement is filed . . . within the prescribed period, the action or determination shall

become final."); 38 U.S.C. § 5109A(a) ("A [final] decision by the Secretary . . . is subject to revision

on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision

shall be reversed or revised."); 38 U.S.C. § 5103 (1995) ("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."); 38 U.S.C. § 5108 ("If new and material evidence is presented or secured with respect

to a claim which has been [finally] disallowed, the Secretary shall reopen the claim and review the

former disposition of that claim."); Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc)

(holding that, once a regional office decision is final, a claimant may only attempt to overcome the

finality of that decision in one of two ways: a request for revision of the decision based on clear and

unmistakable error or a claim to reopen based upon new and material evidence); Russell v. Principi,

3 Vet.App. 310, 315 (1992) ("[T]here is finality in veterans' benefits jurisprudence. . . . Once there

is a final decision on the issue of 'clear and unmistakable error' because the [regional office] decision

was not timely appealed . . . that particular claim of 'clear and unmistakable error' may not be raised

again.").

Further, VA was reasonable in establishing the one-year timing requirement for the return

of the formal application form. Section 5103(a) (1995) states that if the application for benefits is

incomplete, the Secretary shall notify the claimant of the evidence necessary to complete the

application, and if that 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." See also 38 C.F.R. § 3.158(a)

(1995) (stating that, where requested evidence is not received within one year of the date of the

7

Other definitions include: "1. The outer shape or structure of something, as distinguished from its substance

or matter . . . . 3. A model; a sample; an example . . . . 4. The customary method of drafting legal documents, usu[ally]

with fixed words, phrases, and sentences . . . . 5. A legal document with blank spaces to be filled in by the drafter . . . ."

BLACK'S at 723

7

request, "further action will not be taken unless a new claim is received.").8 Therefore, based on the

language of section 5103, it was not "arbitrary or capricious in substance, or manifestly contrary to

the statute" for VA to require that a formal claim be filed within one year of notification. Mayo

Foundation, 131 S. Ct. at 711.

Although Ms. Jernigan argues that VA is not permitted to "'disguise the creation of additional

requirements or limitations as interpretive regulations,'" Appellant's Brief (Br.) at 13 (quoting

Davenport v. Brown, 7 Vet.App. 476, 482 (1995)), that is simply not what happened with the

promulgation of § 3.155(a). Congress expressly delegated authority to VA to determine the

appropriate "forms of application." 38 U.S.C. § 501(a)(2); see also 38 U.S.C. § 5101(a). That

express delegation, along with the Court's determination that the Secretary's interpretation of "form"

to include a timing requirement is reasonable, is sufficient to hold that § 3.155(a) is not "arbitrary

or capricious in substance, or manifestly contrary to the statute." Mayo Foundation, 131 S. Ct. at

711.

b. Effect

At oral argument, Ms. Jernigan conceded that a formal application form is required for VA

to adjudicate a claim and award benefits, but argued that, in her case, the calculation of the amount

of benefits to be paid should be calculated from the date VA received the informal claim, regardless

of the date VA received the formal application form. In support of this argument, Ms. Jernigan

relied on section 5110(a), the effective date statute, and § 3.1(p), which contains VA's definition of

a claim. Ms. Jernigan asserted that, because section 5110(a) states that the effective date of an award

is based on the date of the application and § 3.1(p) defines application as either an informal or formal

writing that evinces an intent to seek benefits, the effective date of any benefits awarded must, in this

case, be the date VA received her informal claim.9 This interpretation is without merit.

Where only an informal claim has been submitted and the claimant has failed to complete

and return a formal application that he or she received from the Secretary, the application for benefits

8

This regulation remains unchanged.

9

Ms. Jernigan attempts to bolster her position by asserting that her July 1995 informal claim had all the

attributes of a formal claim. Because, however, VA's requirement of a formal application form is a valid exercise of the

Secretary's rulemaking authority, it makes no difference what information Ms. Jernigan's July 1995 informal claim

contained; a formal application form was a necessity.

8

is not in the form prescribed by the Secretary and is considered incomplete. See Fleshman,

9 Vet.App. at 551 ("The appellant's unexecuted claim form was an informal claim and would not

have been in the form prescribed by the Secretary until he returned it with the requested

information.") (citing Kluttz v. Brown, 7 Vet.App. 304, 306-07 (1994); 38 C.F.R. § 3.155(a)); see

also Quarles, 3 Vet.App. at 137 (holding by implication that, where a claimant fails to return to the

Secretary a formal claim application within one year of the submission of his informal claim, his

informal claim is not a "cognizable claim for effective date purposes"). A claimant's attempt to

establish an original claim remains incomplete until the formal application form is returned with all

of the requested information. See 38 U.S.C. § 5103(a) (1995);10 Fleshman, 9 Vet.App. at 552; 38

C.F.R. § 3.160(b).

Section 5110(a) provides: "Unless specifically provided otherwise in this chapter, the

effective date of an award based on an original claim . . . shall be fixed in accordance with the facts

found, but shall not be earlier than the date of receipt of application therefor." (Emphasis added.)

Chapter 51 includes section 5103(a), which, in 1995, stated, in addition to that portion given above,

that if the missing evidence was not received by VA within one year of the request, "no benefits may

be paid or furnished by reason of such application." 38 U.S.C. § 5103(a) (1995).11 This portion of

section 5103(a) expressly ruled out the possibility of an effective date as of the date VA received an

informal (that is, incomplete) claim if the missing evidence was not received within one year of VA's

request.

10

Today, section 5103(a) provides, in pertinent part:

Upon receipt of a complete or substantially complete application, the Secretary shall notify the

claimant and the claimant's representative, if any, of any information, and any medical or lay evidence,

not previously provided to the Secretary that is necessary to substantiate the claim. As part of that

notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be

provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A

of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant.

38 U.S.C. § 5103(a)(1).

11

Today, this portion is codified at 38 U.S.C. § 5103(b): "In the case of information or evidence that the

claimant is notified under subsection (a) is to be provided by the claimant, such information or evidence must be received

by the Secretary within one year from the date such notice is sent."

9

To the extent that Ms. Jernigan, in her briefs, attempts to distinguish section 5103(a)'s request

for "evidence" to complete the application, as opposed to "information" of the type that would be

provided on a formal application form, the Court has already addressed this question and held that

"evidence" in the 1995 statute encompassed "information" as well. Robinette v. Brown, 8 Vet.App.

69, 79 (1995); see Davis v. Shinskei, 22 Vet.App. 352, 354 (2009) ("As interpreted by the Court, [the

1995 version of section 5103(a)] required the Secretary to both notify a claimant regarding

information needed to complete an application for benefits and to specifically advise a claimant who

refers to the existence of relevant evidence to submit that evidence." (emphasis added)).12 In

Robinette, the Secretary attempted to argue that the word "evidence" in section 5103(a) (1995) meant

"that he must do no more than notify the claimant of what information is needed to 'complete' the

claim form—for example, a social security number." 8 Vet.App. at 77. The Court held that such

an interpretation was too narrow a view of the word. After analyzing the ordinary meaning of the

word "evidence," the Court stated:

The Secretary's interpretation of the language in section 5103(a) [(1995)] to mean

only that the Secretary must help the person 'fill in the information required by the

blanks on the form,' such as a social security number, conflicts with the plain

meaning of 'evidence'. That 'evidence' means more than just information to be filled

in on the application form, and that an application includes the form plus evidence

in support of the claim flows not only from the plain meaning of the term but also

from the VA Adjudication Procedure Manual, M21-1 (MANUAL M21-1). The

MANUAL M21-1 provides as follows:

e. Defective or Incomplete Application Forms. If an application is

properly signed but is so incomplete that development for the specific

information is not feasible, make a copy of the application and retain

it as the file copy. Return the original application to the claimant with

a request to complete the indicated items checked in red. Ask the

claimant to return it with any other required evidence.

Id. at 78 (emphasis added; bold in original) (citation omitted). It is clear from this discussion that,

in 1995, "evidence" in section 5103(a) also encompassed the "information" normally included on

12

As a result of the Veterans Claims Assistance Act of 2000, the duties of the Secretary to advise the claimant

of missing information to complete the application and to advise the claimant of the evidence necessary to substantiate

his claim have been explicitly separated, the former now appearing at 38 U.S.C. § 5102(b) and the latter, as noted in

footnote 9, above, at 38 U.S.C. § 5103(a)(1). In 1995, however, the duties were contained in a single statute that used

the word "evidence," which was interpreted in Robinette to include the information necessary to complete an application.

10

the formal application form. See id. at 79 ("[T]he Court reaffirms that section 5103(a) [(1995)]

imposes more of an obligation on the Secretary than merely to advise of the need to 'complete' all

blanks on the claim form.").

In light of this discussion, the Court concludes that, in most cases, the return of the formal

application form controls the determination of the proper effective date, should benefits be awarded;

that is, if it is returned within one year, the effective date is the date of the informal claim, and if it

is not, the effective date is the date that it is returned. But see, e.g., Quarles, 3 Vet.App. at 137;

Norris, 12 Vet. App. at 416; 38 C.F.R. §§ 3.154, 3.157. Specifically, if Form 21-526 is returned

within one year of its receipt–a time period the Court has now determined is a reasonable

interpretation of authorizing statutes–the effective date will be the date of the informal claim. 38

C.F.R. § 3.155(a). If it is not, the effective date will be the date of VA's receipt of the formal

application form. See 38 U.S.C. § 5103(a) (1995); 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.158(a),

3.160(b).

B. Duty To Notify

At oral argument, Ms. Jernigan asserted that, because the August 1995 notice she received

from VA accompanying the formal application form was misleading or confusing, VA may not

penalize her for failing to return the form within one year by denying her an effective date as of the

date of her informal claim.13 This argument, however, assumes that VA had a duty to notify

claimants of the timeframe within which to return the claim form.

The Court need not reach this question because, even assuming a duty to notify and defective

notice, there is nothing in the record that indicates that Ms. Jernigan relied to her detriment on the

purportedly misleading notice. See Edwards v. Peake, 22 Vet.App. 29, 34-35 (2008) (citing Day v.

Shalala, 23 F.3d 1052, 1066 (6th Cir. 1994); see also Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th

Cir. 1995); Burks-Marshall v. Shalala, 7 F.3d 1346, 1349 (8th Cir. 1993)). From August 1995 to

October 2001, the record is entirely silent regarding Ms. Jernigan's claim, and she has offered no

explanation on appeal for the 6-year delay in returning Form 21-526 to VA. At oral argument,

counsel for Ms. Jernigan asserted that, although he did not know whether Ms. Jernigan relied on the

13

Before VA, Ms. Jernigan asserted that she did not receive the August 1995 VA letter; however, she

abandoned that assertion before the Court.

11

allegedly misleading notice, one could presume that she had from the notice itself and the subsequent

delay in submitting the formal application form, but he offered no authority for such a presumption,

and our caselaw does not allow it. "The record simply does not support any assertion that the notice

lulled the appellant into failing to act, and [her] arguments must be rejected because they are not

supported by any demonstrable prejudice." Edwards, 22 Vet.App. at 35; see Shinseki v. Sanders,

556 U.S. 396, 409 (2009) (holding that the party asserting notice error has the burden of

demonstrating prejudice).

C. Due Process

In her briefs, Ms. Jernigan contends that the August 1995 VA notice letter "was not adequate

to inform her of the regulatory time limitations by which she must respond or the significant

consequence to her claim if she failed to do so." Appellant's Br. at 15. She asserts that such

deficient notice "amounts to a failure of due process, as it effectively denied her a proper

understanding of her responsibilities." Id. The Court disagrees.

This issue was addressed in one of the Court's earliest cases. In Morris v. Derwinski,

1 Vet.App. 260 (1991), the Court considered whether there was a due process violation where VA

failed to advise a claimant of the abandonment provisions of 38 C.F.R. § 3.158 (1990) and the

consequences of failing to submit the evidence requested by VA. That regulation provides:

[W]here evidence requested in connection with an original 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. Should the right to benefits be finally established . . . compensation . . .

shall commence not earlier than the date of filing the new claim.

38 C.F.R. § 3.158(a). Because § 3.158(a) is a regulation interpreting section 5103(a) (1995),14 and

because that statute's use of the word "evidence" has been interpreted to include "information" such

as that required on the formal application form, Robinette, 8 Vet.App. at 79, we conclude that, at

least in claims controlled by the versions of these statutes and regulations extant in 1995, a claim was

14

In 1991, when Morris was decided, section 5103(a) (1995) was codified at 38 U.S.C. § 3003(a):

If a claimant's application for benefits under the laws administered by [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.

12

also abandoned whenever a formal application form was not returned within one year after the date

of its receipt by a claimant, absent special circumstances such as those identified in Quarles,

3 Vet.App. at 137, and Norris, 12 Vet. App. at 416.15, 16 Accordingly, Morris directly controls the

disposition of Ms. Jernigan's due process argument.

In Morris, the Court stated:

Appellant raises a Due Process Clause argument that he was never notified that

claims are subject to abandonment pursuant to 38 C.F.R. § 3.158(a). . . . [T]he

Secretary correctly argues that appellant's contention is without legal merit because

the abandonment pursuant to 38 C.F.R. § 3.158(a) cannot be set aside or waived on

grounds of alleged ignorance of regulatory requirements. The Supreme Court has

held that everyone dealing with the Government is charged with knowledge of

federal statutes and lawfully promulgated agency regulations. Fed. Crop Ins. Corp.

v. Merrill, 332 U.S. 380, 384–85. . . (1947). Thus, regulations are binding on all who

seek to come within their sphere, "regardless of actual knowledge of what is in the

[r]egulations or of the hardship resulting from innocent ignorance." Id. at 385 . . . .

"The 'presumption' that everyone knows the law is simply a more colorful way of

stating the principle that ignorance of the law is irrelevant." 21 C. Wright & K.

Graham, Federal Practice and Procedure § 5124, at 588 (1977) (footnote omitted).

In 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.

Morris, 1 Vet.App. at 265. It is clear, based on Morris, that Ms. Jernigan's due process argument

based on lack of notice must also fail. Moreover, as discussed above, there is no evidence that Ms.

Jernigan relied on VA's allegedly misleading notice to her detriment. See Day, 23 F.3d at 1066

15

The Court recognizes that it is generally not permitted to affirm the Board's decision on a ground other than

that relied on by the Board. See Newhouse v. Nicholson, 497 F.3d 1298, 1301 (Fed. Cir. 2007) (citing Sec. & Exchange

Comm'n v. Chenery Corp., 332 U.S. 194 (1947) and referring to the "Chenery doctrine"). To the extent that this

statement could be construed as such, the Court notes that the Chenery doctrine is not implicated when "it is clear that

'the agency would have reached the same ultimate result' had it considered the new ground." Fleshman v. West, 138 F.3d

1429, 1433 (Fed. Cir. 1998) (quoting Ward v. Merit Sys. Protection Bd., 981 F.2d 521, 528 (Fed. Cir. 1992)). Moreover,

although the Board did not expressly find that Ms. Jernigan abandoned her July 1995 claim when she failed to return the

formal application form within one year, it found the necessary predicate facts for that conclusion, and there can be no

other characterization of that claim in light of section 5103(a) (1995), Davis, and § 3.158(a).

16

We need not and do not reach the question of whether, under the current versions of these statutes and

regulations, failure to return the requested information (that is, the formal application form, where required) would result

in abandonment of the claim. See 38 U.S.C. § 5102(b). We also note that regardless of whether, as a result of her failure

to return the formal application form within one year, Ms. Jernigan's July 1995 informal claim is characterized as

abandoned or simply non-existent, the effective date of the "original" claim (as defined by 38 C.F.R. § 3.160(b), see fn.2,

supra) filed in October 2001 remains unchanged.

13

(holding that, although the denial notice that claimants received "failed to satisfy the requirements

of due process, the only claimants who could have been injured by the inadequacy are those who

detrimentally relied on the inadequate denial notice"); Gilbert, 45 F.3d at 1394 ( "[A] plaintiff must

demonstrate reliance on the allegedly defective denial notices."); Burks-Marshall, 7 F.3d at 1349

(holding that an appellant has no standing to raise a due process issue where he "has not shown that

the alleged deficiency in the notice had any connection in fact with h[is] own failure to seek review

of" the denial of his claim).

In light of the above discussion, the Court concludes that the Board's determination that an

effective date prior to October 31, 2001, for the award of VA disability benefits for gastroesophageal

reflux disease, a lumbosacral strain, and an appendectomy scar was not warranted was not clearly

erroneous. 38 U.S.C. § 7261(a)(4); see Hanson v. Brown, 9 Vet.App. 29, 32 (1996); Gilbert v.

Derwinski, 1 Vet.App. 49, 52 (1990).

III. CONCLUSION

The March 23, 2010, Board decision is AFFIRMED.

14